New York-New York-1633 Broadway Lease - MRI Broadway Rental Inc. and Telephone Marketing Programs Inc.
________________________________________________________________________________
________________________________________________________________________________
PDC REALTY INC.,
As Agent For
MRI BROADWAY RENTAL, INC.,
Landlord,
-and-
TELEPHONE MARKETING PROGRAMS INC.
Tenant.
________________________________________________________________________________
L E A S E
________________________________________________________________________________
Dated: as of October 31, 1978
________________________________________________________________________________
________________________________________________________________________________
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AGREEMENT made as of 31 October, 1978 between PDC REALTY INC., as agent for
MRI BROADWAY RENTAL, INC., a New York corporation, having an office at 1001 East
Touhy Avenue, Des Plaines, Illinois (the "Landlord") and TELEPHONE MARKETING
PROGRAMS INC., a New York corporation having an office at 605 Third Avenue, New
York, New York (the "Tenant").
W I T N E S S E T H
WHEREAS:
A. Landlord and Tenant simultaneously herewith are entering into a
certain lease (the "Lease") dated as of the date hereof, covering certain
premises (the "Premises") located on the thirty-third floor of the building
known as 1633 Broadway, New York, New York.
B. Landlord and Tenant wish to enter into a separate agreement with
respect to the furnishing of electrical energy to the premises prior to the rent
commencement date (as that term is defined in the Lease).
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter contained, it is mutually covenanted and agreed as follows:
1. Pursuant to the provisions of the Lease, Tenant may occupy the
premises prior to the rent commencement date for the performance of Tenant's
Changes (as that term is defined in the Lease). Notwithstanding anything
contained to the contrary in the Lease, Tenant shall pay to Landlord, as
additional rent, $39,650.00 per annum (pro rated for any period less than a
full month), during the period commencing on the term commencement date (as that
term is defined in the Lease) through and including the day immediately
preceding the rent commencement date, representing reimbursement to Landlord for
the furnishing to Tenant of electrical energy during said period.
2. The amount payable pursuant to paragraph 1 above shall be
subject to adjustment as provided in Article 24 of the Lease, however,
notwithstanding the provisions of Article 24 of the Lease, in connection with
Tenant's computer area to be located in the northwest portion of the premises,
which shall be in operation prior to Tenant's occupancy of any portion of the
premises for Tenant's business purposes, the initial survey shall determine the
electrical energy requirements of such computer area and the electrical energy
requirements relating to the performance of Tenant's Changes and the amount
payable pursuant to paragraph 1 above shall be adjusted to reflect such
electrical usage prior to the date Tenant occupies any portion of the premises
for Tenant's business purposes, and the initial unpaid amount of any increase or
decrease in said amount, as the case may be, shall be paid as provided for in
Section 24.03 of the Lease.
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3. Such additional rent shall be paid by Tenant on the first day of each
and every calendar month from the term commencement date to the day immediately
preceding the rent commencement date.
4. The Lease, as modified by this agreement, is hereby in all respects
ratified, confirmed and approved.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
agreement as of the day and year first above written.
[SEAL] PDC REALTY INC.
By: /s/ John B. Farren
----------------------------
President
TELEPHONE MARKETING PROGRAMS INC.
By: /s/ Andrew J. McKelvey
----------------------------
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State of Illinois )
SS.:
County of Cook )
On the 7th day of November, 1978, before me personally came John B. Farren,
to me known, who, being by me duly sworn, did depose and say that he resides at
No. 1001 E. Touhy Ave. Des Plaines, Illinois ; that he is the President of PDC
Realty Inc., the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
board of directors of said corporation, and that he signed his name thereto by
like order.
/s/ Janet M. (illegible signature)
--------------------------------------------
My Commission Expires March 14, 1982
State of New York )
SS.:
County of New York )
On the 30th day of October, 1978, before me personally came Andrew
J. McKelvey to me known, who being by me duly sworn, did depose and say that he
resides at No. 300 East 40th Street New York, New York; that he is the President
of Telephone Marketing Programs Inc., the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the board of directors of said corporation, and that he
signed his name thereto by like order.
/s/ Muriel T. Ruttgeizer
--------------------------------------------
Muriel T. Ruttgeizer
Notary Public State of New York
No. 24-4625170
Qualified in Kings County
Commission Expires March 30, 1979
<PAGE>
_______________________________________________________________________________
TABLE OF CONTENTS
_______________________________________________________________________________
Article Page
------- ----
1 Premises, Term, Purposes and Rent ------------------------------ 1
2 Completion and Occupancy --------------------------------------- 2
3 Use of Premises ------------------------------------------------ 3
4 Appurtenances, Etc., Not to be Removed ------------------------- 4
5 Various Covenants ---------------------------------------------- 5
6 Changes or Alterations by Landlord ----------------------------- 10
7 Damage by Fire, Etc. ------------------------------------------- 11
8 Condemnation --------------------------------------------------- 14
9 Compliance with Laws ------------------------------------------- 15
10 Accidents to Plumbing and Other Systems ------------------------ 17
11 Notices -------------------------------------------------------- 17
12 Conditions of Limitation --------------------------------------- 18
13 Reentry by Landlord -------------------------------------------- 20
14 Damages -------------------------------------------------------- 21
15 Waivers by Tenant ---------------------------------------------- 22
16 Waiver of Trial by Jury ---------------------------------------- 23
17 Elevators, Cleaning, Heating, Air
Conditioning, Services, Etc. -------------------------------- 23
18 Lease Contains All Agreements--No Waivers ---------------------- 25
19 Parties Bound -------------------------------------------------- 26
20 Curing Tenant's Defaults -- Additional Rent -------------------- 28
21 Inability to Perform ------------------------------------------- 29
22 Adjacent Excavation--Shoring ----------------------------------- 30
23 Article Headings ----------------------------------------------- 30
24 Electricity and Water ------------------------------------------ 30
25 Assignment, Mortgaging, Subletting, Etc.------------------------ 34
26 Escalation ----------------------------------------------------- 43
27 Subordination -------------------------------------------------- 47
28 Miscellaneous -------------------------------------------------- 48
29 Layout and Finish ---------------------------------------------- 52
30 Insurance ------------------------------------------------------ 55
31 Security Deposit ----------------------------------------------- 56
32 Quiet Enjoyment ------------------------------------------------ 57
Signatures ----------------------------------------------------- 58
Acknowledgments ------------------------------------------------ 59
Rules and Regulations ------------------------------------------ 60
Cleaning Specifications ---------------------------------------- 65
Floor Plan -----------------------------------------------------
<PAGE>
LEASE, dated as of October 31, 1978, between PDC REALTY INC., as Agent for MRI
BROADWAY RENTAL, INC., a New York corporation, having an office at 1001 East
Touhy Avenue, Des Plaines, Illinois (hereinafter called "Landlord") and
TELEPHONE MARKETING PROGRAMS INC., a New York corporation, having an office at
605 Third Avenue, New York, New York (hereinafter called "Tenant").
W I T N E S S E T H:
ARTICLE 1
PREMISES, TERM, PURPOSES AND RENT
SECTION 1.01. Landlord does hereby lease to Tenant, and Tenant does
hereby hire from Landlord, subject to any ground leases and/or underlying leases
and/or mortgages as hereinafter provided, and upon and subject to the covenants,
agreements, terms, provisions and conditions of this Lease, for the term
hereinafter stated, a portion of the thirty-third (33rd) floor, substantially as
shown hatched on the rental plan annexed hereto and made a part hereof in the
building (hereinafter called "the Building") known as 1633 Broadway, New York,
New York. Said leased premises, together with all fixtures, equipment,
improvements, installations and appurtenances which at the commencement of or
during the term of this Lease are thereto attached (except items not deemed to
be included therein and removable by Tenant as provided in Article 4 of this
Lease) are hereinafter called "the premises". The plot of land on which the
Building is erected is hereinafter called "the Land".
SECTION 1.02. The term of this Lease shall commence on the date hereof
(hereinafter called "the term commencement date") and shall end on the fifteenth
anniversary of the rent commencement date (as hereinafter defined) or shall end
on such earlier date upon which said term may expire or be terminated as
hereinafter provided or pursuant to law.
SECTION 1.03. The premises shall be used for the following, but no
other purpose, namely: Executive and general offices.
SECTION 1.04. The rent reserved under this Lease for the term hereof
shall be and consist of the following fixed rent (hereinafter called the "fixed
rent"), namely: Three Hundred Seventy Two Thousand Seven Hundred Ten
($372,710.00) DOLLARS per annum, commencing on July 1, 1979 (such date for the
commencement of rent hereof being herein
<PAGE>
called the "rent commencement date"), and shall be payable in equal monthly
installments in advance on the first day of each and every calendar month during
said term (except that Tenant shall pay the first monthly installment on the
execution hereof), plus such additional rent and other charges as shall become
due and payable hereunder, which additional rent and other charges shall be
payable as hereinafter provided; all to be paid to Landlord at its office, or
such other place as Landlord may designate, in lawful money of the United States
of America.
SECTION 1.05. Tenant does hereby covenant and agree promptly to pay
the fixed rent, additional rent and other charges herein reserved as and when
the same shall become due and payable, without demand therefor, and without any
set-off or deduction whatsoever, and to keep, observe and perform, and to permit
no violation of, each and every of the covenants, agreements, terms, provisions
and conditions herein contained on the part and on behalf of Tenant to be kept,
observed and performed.
SECTION 1.06. The parties agree that the rentable area of the demised
premises is 31,720 square feet. In determining the rentable area of any portion
of the premises pursuant to any other provision of this Lease, the rentable area
of such portion shall be the rentable area thereof in square feet determined in
accordance with the Standard Method of Floor Measurement for Office Buildings
adopted by The Real Estate Board of New York, New York, Inc., effective April
16, 1968.
ARTICLE 2
COMPLETION AND OCCUPANCY
SECTION 2.01. Tenant acknowledges that it has inspected the premises
and agrees to accept possession of same in its "as-is" physical condition on the
term commencement date, it being understood and agreed that Landlord shall not
be obligated to perform any alterations, improvements or repairs to the
premises.
SECTION 2.02. Tenant shall occupy the premises as soon as the premises
are available for occupancy. The fixed rent reserved and covenanted to be paid
under this Lease shall commence on the rent commencement date. Tenant, by
entering into occupancy of any part of the premises shall be conclusively deemed
to have agreed that Landlord, up to the time of such occupancy, had performed
all of its obligations hereunder with
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respect to such part and that such part was in satisfactory condition as of the
date of such occupancy, unless within ten (10) days after such date Tenant shall
give written notice to Landlord specifying the respects in which the same was
not in such condition.
SECTION 2.03. If, by reason of any of the provisions of this Lease,
the fixed rent shall commence on any date other than the first day of a calendar
month, the fixed rent for such calendar month shall be prorated.
ARTICLE 3
USES OF PREMISES
SECTION 3.01. Tenant shall not use the premises or any part thereof,
or permit the premises or any part thereof to be used, for any purpose other
than the use hereinbefore specifically mentioned. Those portions, if any, of
the premises, which are identified as toilets and utility areas, shall be used
by Tenant only for the purposes for which they are designed.
SECTION 3.02. Tenant shall not use or permit the use of the premises
or any part thereof in any way which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or for any unlawful
purposes or in any unlawful manner and Tenant shall not suffer or permit the
premises or any part thereof to be used in any manner or anything to be done
therein or anything to be brought into or kept therein which shall in any way
impair or tend to impair the character, reputation or appearance of the Building
as a high quality office building, impair or interfere with or tend to impair or
interfere with any of the Building services or the proper and economic heating,
cleaning, air conditioning or other servicing of the Building or premises, or
impair or interfere with or tend to impair or interfere with the use of any of
the other areas of the Building by, or occasion discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Building.
SECTION 3.03. If any governmental license or permit shall be required
for the proper and lawful conduct of Tenant's business or other activity carried
on in the premises, and if the failure to secure such license or permit might or
would, in any way, affect Landlord, then Tenant, at Tenant's expense, shall duly
procure and thereafter maintain such license or permit and submit the same to
inspection by Land-
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lord. Tenant, at Tenant's expense, shall at all times, comply with the
requirements of each such license or permit.
ARTICLE 4
APPURTENANCES, ETC., NOT TO BE REMOVED
SECTION 4.01. All fixtures, equipment, improvements, installations and
appurtenances attached to, or built into the premises at the commencement of or
during the term hereof (hereinafter severally, and collectively called, in this
Section 4.01, "Appurtenances"), whether or not furnished or installed at the
expense of Tenant or by Tenant, shall be and remain part of the premises and be
deemed the property of Landlord and shall not be removed by Tenant, except as
otherwise expressly provided in this Lease. Without limiting the generality of
the next preceding sentence, all electric, plumbing, heating, sprinkler,
dumbwaiter, elevator, pneumatic tube, telephone, telegraph, communication, radio
and television systems, fixtures and outlets, venetian blinds, partitions,
railings, gates, doors, vaults, stairs, paneling, display cases, cupboards
(whether or not recessed in paneling), molding, shelving, radiator enclosures,
cork, rubber, tile and composition floors, and ventilating, silencing, air
conditioning and cooling equipment shall be deemed to be included in such
Appurtenances, whether or not attached to or built into the premises. Anything
hereinbefore in this Article 4 contained to the contrary notwithstanding, any
Appurtenances furnished and installed in any part of the premises (whether or
not attached thereto or built therein) at the sole expense of Tenant (and with
respect to which no credit or allowance shall have been granted to Tenant by
Landlord and which was not furnished and installed in replacement of an item
which Tenant would not be entitled to remove in accordance with this Article 4)
may be removed from the Building by Tenant prior to the expiration of the term
hereof, and, if and to the extent requested by Landlord (either prior to or not
more than thirty (30) days after such expiration), shall be removed from the
Building by Tenant prior to such expiration unless such request is made after
such expiration, in which event such Appurtenances shall be removed from the
Building by Tenant with reasonable promptness after the receipt of such request.
Tenant shall repair and restore, in a good and workmanlike manner to its
original condition any damage to the premises or the Building caused by such
removal. If any Appurtenance which as aforesaid may or is required to be
removed from the Building by Tenant is not removed by Tenant from the Building
within the time above specified therefor, then Landlord (in addition
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to all other rights and remedies to which Landlord may be entitled at any
time) may at its election deem that the same has been abandoned by Tenant to
Landlord, but no such election shall relieve Tenant of Tenant's obligation to
pay the expenses of removing the same from the premises or the expense of
repairing damage to the premises or to the Building arising from such removal.
SECTION 4.02. All the perimeter walls of the premises, any balconies,
terraces or roofs adjacent to the premises, and any space in and/or adjacent to
the premises used for shafts, stairways, stacks, pipes, vertical conveyors, mail
chutes, pneumatic tubes, conduits, ducts, electric or other utilities, rooms
containing elevator or air conditioning machinery and equipment, sinks, or other
similar or dissimilar Building facilities, and the use thereof, as well as
access thereto through the premises for the purpose of such use and the
operation, improvement, replacement, addition, repair, maintenance and/or
decoration thereof, are expressly reserved to Landlord.
ARTICLE 5
VARIOUS COVENANTS
SECTION 5.01. Tenant covenants and agrees that Tenant will:
(a) Take good care of the premises, and pay to Landlord the
expense of making good any injury, damage or breakage done by or on behalf of
Tenant (including, without limitation, the cost of removing stains from the
floors and walls resulting from the preparation, dispensing or consumption of
food or beverages or from any other cause).
(b) Faithfully observe and comply with the rules and regulations
annexed hereto and such additional reasonable rules and regulations as Landlord
hereafter at any time or from time to time may make and may communicate in
writing to Tenant, provided, however, that in the case of any conflict between
the provisions of this Lease and any such rule or regulation, the provisions of
this Lease shall control, and provided further that nothing contained in this
Lease shall be construed to impose upon Landlord any duty or obligation to
enforce the rules and regulations or the terms, covenants or conditions in any
other lease as against any other tenant and provided further that Landlord shall
not be liable to Tenant for violation of the same by any other ten-
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ant, its employees, agents, visitors, invitees, subtenants or licensees.
(c) Permit Landlord and any mortgagee of the Building and/or the
Land or of the interest of Landlord therein and any lessor under any ground or
underlying lease, and their representatives, to enter the premises at all
reasonable hours for the purposes of inspection, or of making repairs,
replacements or improvements in or to the premises or the Building or equipment,
or of complying with all laws, orders and requirements of governmental or other
authority or of exercising any right reserved to Landlord by this Lease
(including the right during the progress of such repairs, replacements or
improvements or while performing work and furnishing materials in connection
with compliance with any such laws, orders or requirements, to keep and store
within the premises all necessary materials, tools and equipment).
(d) Make no claim against Landlord or any lessor under any
ground or underlying lease for any damage to property of Tenant or of others
entrusted to employees of the Building or for any loss of or damage to any
property of Tenant by theft or any injury or damage to Tenant or other persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Building or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of whatsoever
nature, unless caused by or due to the negligence of Landlord, its agents,
servants or employees; or any such damage caused by other tenants or persons
in the Building or caused by construction of any private, public or quasi
public work; or any latent defect in the premises or in the Building. No
property other than such as might normally be brought upon or kept in the
premises as an incident to the reasonable use of the premises for the
purposes specified in this Lease shall be brought upon or kept in the
premises.
(e) Make no alterations, decorations, installations, repairs,
additions, improvements or replacements (hereinafter collectively called
"Tenant's Changes") in, to or about the premises without Landlord's prior
written consent, and then only by contractors or mechanics approved by Landlord
and Landlord agrees, with respect to decorations, non-structural replacements
and repairs, not to unreasonably withhold its consent. Tenant's Changes shall
be done at Tenant's sole expense and at such times and in such manner as
Landlord may from time to time designate. Prior to the commencement of
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any Tenant's Changes, Tenant shall submit to Landlord, for Landlord's written
approval, plans and specifications (to be prepared by and at the expense of
Tenant) of such proposed Tenant's Changes in detail satisfactory to Landlord.
In no event shall any material or equipment be incorporated in or to the
premises in connection with any such Tenant's Changes which is subject to any
lien, security agreement, charge, mortgage or other encumbrance of any kind
whatsoever or is subject to any conditional sale or other similar or dissimilar
title retention agreement. Any mechanic's lien filed against the premises or
the Building for work done for, or claimed to have been done for, or materials
furnished to, or claimed to have been furnished to, Tenant shall be discharged
by Tenant within ten (10) days thereafter, at Tenant's expense, by filing the
bond required by law or otherwise. All Tenant's Changes shall at all times
comply with (1) laws, rules, orders and regulations of governmental authorities
having jurisdiction thereof, (2) rules and regulations of Landlord, and (3)
plans and specifications prepared by and at the expense of Tenant theretofore
submitted to Landlord for Landlord's prior written approval. No Tenant's
Changes shall be undertaken, started or begun by Tenant or by its agents,
employees, contractors or anyone else acting for or on behalf of Tenant until
Landlord has approved such plans and specifications, and no amendments or
additions to such plans and specifications shall be made without the prior
written consent of Landlord. Landlord agrees that, with respect to Tenant's
contemplated Tenant's Changes in connection with its initial occupancy of the
premises, Landlord shall not unreasonably withhold its consent, provided that
such Tenant's Changes do not include any structural alterations, additions,
installations or improvements, do not affect the outside appearance of the
Building and do not interfere with any fixtures or equipment in the Building or
any mechanical, electrical or plumbing facilities servicing other portions of
the Building. If Tenant's installation of any computer, telephone, telex or
other similar equipment in the premises involves other portions of the Building,
such installations shall be made at locations specified by Landlord and Tenant
specifically agrees to do such work in such a manner as not to interfere with or
impair the use of other portions of the Building by Landlord and other tenants
of the Building and if necessary to prevent such interference or impairment to
do work after business hours whether or not additional expense may be incurred
thereby by Tenant.
(f) Not violate, or permit the violation of, any condition
imposed by the standard fire insurance policy issued for office buildings in
the Borough of Manhattan, City
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of New York, and not do anything or permit anything to be done, or keep anything
or permit anything to be kept, in the premises, which would increase the fire or
other casualty insurance rate on the Building or the property therein, or which
would result in insurance companies of good standing refusing to insure the
Building or any such property in amounts and against risks as reasonably
determined by Landlord. If by reason of failure of Tenant to comply with the
provisions of this paragraph including, but not limited to, the mere use to
which Tenant puts the premises, the fire insurance rate shall at the beginning
of this Lease or at any time thereafter be higher than it otherwise would be,
then Tenant shall reimburse Landlord, as additional rent hereunder, for that
part of all fire insurance premiums thereafter paid by Landlord which shall have
been charged because of such failure or use by Tenant, and shall make such
reimbursement upon the first day of the month following such outlay by Landlord.
In any action or proceeding wherein Landlord and Tenant are parties, a schedule
or "make up" rate for the Building or premises issued by the New York Fire
Insurance Rating Organization, or other body making fire insurance rates for the
premises, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate then applicable to the
premises. That the premises are being used for the purpose set forth in Article
3 hereof, shall not relieve Tenant from the foregoing duties, obligations and
expenses.
(g) Permit Landlord, at reasonable times, to show the premises
to any lessor under any ground or underlying lease, or any lessee or mortgagee,
or any prospective purchaser, lessee, mortgagee, or assignee of any mortgage of
the Building and/or the Land or of Landlord's interest therein, and their
representatives, and during the period of six (6) months next preceding the date
of expiration of the term hereof with respect to any part of the premises
similarly show any part of the premises to any person contemplating the leasing
of all or a portion of the same.
(h) At the end of the term, quit and surrender to Landlord
the premises broom-clean and in good order and condition except for ordinary
wear and tear and Tenant shall remove all of its personal property, except a
may be otherwise provided in Article 4 hereof. Any personal property which
shall remain in the premises after the expiration or termination of the term
of this Lease shall be deemed to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in such manner as
Landlord may see fit; provided, however, that, notwithstanding the foregoing,
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Tenant will, upon request of Landlord made not later than thirty (30) days after
the expiration or termination of the term hereof, promptly remove from the
Building any such personal property at Tenant's own cost and expense. If the
last day of the term of this Lease falls on Sunday or a legal holiday, this
Lease shall expire on the business day immediately preceding.
(i) At any time and from time to time upon not less than five
(5) days' prior notice by Landlord to Tenant, execute, acknowledge and deliver
to Landlord, or to anyone Landlord shall designate, a statement of Tenant (or if
Tenant is a corporation, an appropriate officer of Tenant) in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), specifying the dates to which the fixed rent,
additional rent and other charges have been paid in advance, if any, and stating
whether or not to the best knowledge of the signer of such certificate Landlord
is in default in performance of any provision of this Lease and, if so,
specifying each such default of which the signer may have knowledge, it being
intended that any such statement so delivered may be relied upon by any lessor
under any ground or underlying lease, or any lessee or mortgagee, or any
prospective purchaser, lessee, mortgagee, or assignee of any mortgage, of the
Building and/or the Land or Landlord's interest therein.
(j) Not move any safe, heavy machinery, heavy equipment,
freight, bulky matter or fixtures into or out of the Building without Landlord's
prior written consent. such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons holding
a Master Rigger's License to do said work, and that all work in connection
therewith shall comply with the Administrative Code of the City of New York.
Notwithstanding said consent of Landlord, Tenant shall indemnify Landlord for,
and hold Landlord harmless and free from, damages sustained by person or
property and for any damages or monies paid out by Landlord in settlement of any
claims or judgments, as well as for all expenses and reasonable attorneys' fees
incurred in connection therewith and all costs incurred in repairing any damage
to the Building or appurtenances.
(k) Indemnify, and save harmless, Landlord and any mortgagee and
any lessor under any ground or underlying lease, and their respective officers,
directors, contractors agents and employees, from and against any and all
liability
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(statutory or otherwise), claims, actions, suits, demands, damages, judgments,
costs, interest and expenses of any kind or nature of anyone whomsoever
(including, but not limited to, counsel fees and disbursements incurred in the
defense of any action or proceeding), to which they may be subject or which they
may suffer by reason of, or by reason of any claim for, any injury to, or death
of, any person or persons or damage to property (including any loss of use
thereof) or otherwise arising from or in connection with the use of or from any
work, installation or thing whatsoever done (other than by Landlord or its
contractors or the agents or employees of either) in the premises prior to,
during or subsequent to, the term of this Lease or arising from any condition of
the premises due to or resulting from any default by Tenant in the performance
of Tenant's obligations under this Lease or from any act, omission or negligence
of Tenant or any of Tenant's officers, directors, agents, contractors,
employees, subtenants, licensees or invitees.
ARTICLE 6
CHANGES OR ALTERATIONS BY LANDLORD
SECTION 6.01. Landlord reserves the right to make such changes,
alterations, additions, improvements, repairs or replacements in or to the
Building (including the premises) and the fixtures and equipment thereof, as
well as in or to the street entrances, halls, passages, elevators, escalators,
stairways and other parts thereof, including the erection, maintenance and use
of pipes, ducts and conduits in and through the premises, all as Landlord may
deem necessary or desirable; provided, however, that there be no unreasonable
obstruction of the means of access to the premises or unreasonable interference
with the use of the premises. Nothing contained in this Article 6 shall relieve
Tenant of any duty, obligation or liability of Tenant with respect to making any
repair, replacement or improvement or complying with any law, order or
requirement of any governmental or other authority.
SECTION 6.02. Landlord reserves the right to name the Building and to
change the name or address of the Building at any time and from time to time.
Neither this Lease nor any use by Tenant shall give Tenant any easement or other
right in or to the use of any door or any passage or any concourse or any plaza
connecting the Building with any subway or any other building or to any public
conveniences, and the use of such doors, passages, concourses, plazas and
conveniences may without notice to Tenant, be regulated or discontinued at any
time
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by Landlord. If at any time any windows of the premises are temporarily
darkened or obstructed incident to or by reason of repairs, replacements,
maintenance and/or cleaning in, on, to or about the Building or any part or
parts thereof or are permanently darkened for any reason beyond Landlord's
control or are temporarily or permanently closed or rendered inoperable, for any
reason whatsoever including, but not limited to, Landlord's own acts, Landlord
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor abatement of rent nor shall the
same release Tenant from its obligations hereunder nor constitute an eviction.
SECTION 6.03. Except as provided in Article 7 of this Lease, there
shall be no allowance to Tenant for a dimunition of rental value, the same shall
not constitute an eviction of Tenant in whole or in part and Landlord shall
incur no liability whatsoever by reason of inconvenience, annoyance or injury to
business arising from Landlord, Tenant or others making any changes,
alterations, additions, improvements, repairs or replacements in or to any
portion of the Building or the premises or in or to fixtures, appurtenances or
equipment thereof or in the taking or storing of material in the premises in
connection therewith and no liability shall be incurred by Landlord for failure
of Landlord or others to make any changes, alterations, additions, improvements,
repairs or replacements in or to any portion of the Building or the premises, or
in or to the fixtures, appurtenances or equipment thereof.
ARTICLE 7
DAMAGE BY FIRE, ETC.
SECTION 7.01. If any part of the premises shall be damaged by fire or
other casualty, Tenant shall give prompt written notice thereof to Landlord and
Landlord shall proceed with reasonable diligence, and in a manner consistent
with the provisions of any ground or underlying lease and any mortgage affecting
the same or the Land and/or the Building or Landlord's interest therein, to
repair such damage, and if any part of the premises shall be rendered
untenantable by reason of such damage, the annual fixed rent payable hereunder
shall be abated to the extent that such fixed rent relates to such part of the
premises (and such abatement is in excess of the annual rate of any other
existing abatement of fixed rent relating thereto under any other provision of
this Lease) for the period from the date of such damage to the date when such
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part of the premises shall have been made tenantable or to such earlier date
upon which the full term of this Lease with respect to such part of the premises
shall expire or terminate, unless such fire or other casualty shall have
resulted from the negligence of Tenant or the employees, licensees or invitees
of Tenant. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof. Tenant understands that Landlord will not carry
insurance of any kind on Tenant's Property, to wit, Tenant's goods, furniture or
furnishings or any fixtures, equipment, improvements, installations or
appurtenances removable by Tenant as provided in this Lease, and that Landlord
shall not be obligated to repair any damage thereto or replace the same.
SECTION 7.02. If substantial alteration or reconstruction of the
Building shall, in the sole opinion of Landlord, be required as a result of
damage by fire or other casualty (whether or not the premises shall have been
damaged by such fire or other casualty), then this Lease and the term and estate
hereby granted may be terminated by Landlord by its giving to Tenant within one
hundred twenty 120 days after the date of such damage written notice specifying
a date, not less than thirty (30) days after the giving of such notice, for such
termination. In case of any damage or destruction mentioned in this Section,
Tenant may cancel this Lease by written notice to Landlord, if (i) within 60
days from the date of the damage or destruction, Landlord does not file a proof
of loss with its insurer; (ii) within 90 days of the date of damage or
destruction Landlord does not let a contract or contracts which shall provide
for the complete restoration of the premises within a period of one year from
the date of the damage or destruction; (iii) work under such contract or
contracts has not commenced within 120 days of the date of said damage or
destruction; or (iv) said work is not prosecuted with reasonable diligence to
its completion; provided that Tenant shall not be entitled to cancel this Lease
pursuant to this sentence more than thirty (30) days after Landlord shall have
given written notice to Tenant that the state of facts specified in clause (i),
(ii) or (iii) of this sentence, as the case may be, has occurred. The period
for the completion of the required repairs and restoration work shall be
extended by the number of days lost (not to exceed, however, one year) in the
event such loss results from strike, act of God, war, governmental action,
national or state or municipal emergency or any other similar cause beyond the
reasonable control of Landlord. In the event of the giving of a notice of
termination, as described in this Section, this Lease and the term and
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estate hereby granted shall expire as of the date specified therefor in such
notice with the same effect as if such date were the date hereinbefore specified
for the expiration of the full term of this Lease, and the fixed rent payable
hereunder shall be apportioned as of such date of termination, subject to
abatement, if any, as and to the extent provided in Section 7.01 hereof.
SECTION 7.03. Each party agrees to endeavor to have included in each
of its fire insurance policies (insuring the Building and Landlord's property
therein, in the case of Landlord, and insuring Tenant's Property in the
premises, in the case of Tenant, against loss, damage or destruction by fire or
other casualty therein covered) a waiver of the insurer's right of subrogation
against the other party, or, if such waiver should be unobtainable or
unenforceable, (a) an express agreement that such policy shall not be
invalidated if the assured waives, before the casualty, the right of recovery
against any party responsible for a casualty covered by the policy or (b) any
other form of permission shall not be, or shall cease to be, obtainable (i)
without additional charge or (ii) at all, the insured party shall so notify the
other party promptly after learning thereof. In the first such case, if the
other party shall so elect and shall pay the insurer's additional charge
therefor, such waiver, agreement or permission shall be included in the policy.
SECTION 7.04. Each party hereby releases the other party with respect
to any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damage or destruction with respect to its
property occurring during the term of this Lease to the extent to which it is
insured under a policy or policies containing a waiver of subrogation or
permission to release liability, as provided in Section 7.03 hereof. If,
notwithstanding the recovery of insurance proceeds by either party for such
loss, damage or destruction of its property, the other party is liable to the
first party with respect thereto or is obligated under this Lease to make
replacement, repair or restoration or payment, then (provided the first party's
right of full recovery under its insurance policies is not thereby prejudiced or
otherwise adversely affected) the amount of the net proceeds of the first
party's insurance against such loss, damage or destruction shall be offset
against the second party's liability to the first party therefor, or shall be
made available to the second party to pay for replacement, repair or
restoration, as the case may be. Nothing contained in this Section 7.04 shall
relieve either party of any duty imposed elsewhere in this
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Lease to repair, restore or rebuild or to nullify any abatement of rent provided
for elsewhere in this Lease.
SECTION 7.05. This Lease shall be considered an express agreement
governing any case of damage to or destruction of the Building or any part
thereof by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York providing for such a contingency in the absence of express
agreement, and any other law of like import now or hereafter in force, shall
have no application in such case.
ARTICLE 8
CONDEMNATION
SECTION 8.01. in the event that the whole of the premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the premises shall be so condemned or taken, then, effective as of the date of
vesting of title, the fixed rent hereunder shall be abated in an amount thereof
apportioned according to the area of the premises so condemned or taken. In the
event that only a part of the Building shall be so condemned or taken, then, (a)
Landlord (whether or not the premises be affected) may, at Landlord's option,
terminate this Lease and the term and estate hereby granted as of the date of
such vesting of title by notifying Tenant in writing of such termination within
one hundred twenty (120) days following the date on which Landlord shall have
received notice of vesting of title or (b) if such condemnation or taking shall
be of a substantial part of the premises or of a substantial part of the means
of access thereto, Tenant may, at Tenant's option, by delivery of notice in
writing to Landlord within sixty (60) days following the date on which Tenant
shall have received notice of vesting of title, terminate this Lease and the
term and estate hereby granted as of the date of testing of title, or (c) if
neither Landlord nor Tenant elects to terminate this Lease, as aforesaid, this
Lease shall be and remain unaffected by such condemnation or taking, except that
the fixed rent payable hereunder shall be abated to the extent, if any,
hereinbefore provided in this Article 8. In the event that only a part of the
premises shall be so condemned or taken and this Lease and the term and estate
hereby granted with respect to the remaining portion of the premises are not
terminated as hereinbefore provided, Landlord will, with reasonable diligence
and at its expense, restore the remaining portion of the
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premises as nearly as practicable to the same condition as it was in prior to
such condemnation or taking, however, Landlord shall not be obligated to repair
any damage to Tenant's Property (as defined in Section 7.01 hereof) or replace
the same.
SECTION 8.02. In the event of a termination of this Lease pursuant to
Section 8.01 of this Article 8, this Lease and the term and estate hereby
granted shall expire as of the date of such termination with the same effect as
if that were the date hereinbefore set for the expiration of the full term of
this Lease, and the fixed rent payable hereunder shall be apportioned as of such
date.
SECTION 8.03. In the event of any condemnation or taking hereinbefore
mentioned of all or a part of the Building, Landlord shall be entitled to
receive the entire award in the condemnation proceeding, including any award
made for the value of the estate vested by this Lease in Tenant, and Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof, and
Tenant shall be entitled to receive no part of such award. The foregoing shall
not prohibit Tenant's independent claim for the value of Tenant's trade fixtures
and moving expenses and any other claim permitted under law so long as any award
made to Tenant based upon such claim does not reduce the award otherwise payable
to Landlord.
SECTION 8.04. It is expressly understood and agreed that the
provisions of this Article 8 shall not be applicable to any condemnation or
taking for governmental occupancy for a limited period of not more than six (6)
months.
ARTICLE 9
COMPLIANCE WITH LAWS
SECTION 9.01. Tenant, at Tenant's expense, shall comply with all laws
and ordinances, and all rules, orders and regulations of all governmental
authorities and of all insurance bodies, at any time duly issued or in force,
applicable to the premises or any part thereof or to Tenant's use thereof,
except that Tenant shall not hereby be under any obligation to comply with any
law, ordinance, rule, order or regulation requiring any structural alteration of
or in connection with the premises, unless such alteration is required by reason
of a condition which has been created by, or at the instance of Tenant, or is
attributable to the use or manner of
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use to which Tenant puts the premises, or is required by reason of a breach of
any of Tenant's covenants and agreements hereunder. Where any structural
alteration of or in connection with the premises is required by any such law,
ordinance, rule, order or regulation, and, by reason of the express exception
hereinabove contained, Tenant is not under any obligation to make such
alteration, then Landlord shall have the option of making such alteration and
paying the cost thereof, or of terminating this Lease and the term and estate
hereby granted by giving to Tenant not less than thirty (30) days' prior written
notice of such termination; provided, however, that if within fifteen (15)
days after the giving by Landlord of its notice of termination as aforesaid,
Tenant shall give written notice to Landlord stating that Tenant elects to make
such alteration at the expense of Tenant, then such notice of termination shall
be ineffective provided that Tenant, at Tenant's expense, shall concurrently
with the giving of such notice to Landlord, execute and deliver to Landlord
Tenant's written undertaking, with a surety and in form and substance
satisfactory to Landlord, obligating Tenant to promptly and duly make such
alteration in a manner satisfactory to Landlord and to save Landlord harmless
from any and all costs, expenses, penalties and/or liabilities (including, but
not limited to, accountants' and attorneys' fees) in connection therewith or by
reason thereof; and Tenant covenants and agrees that, after so electing to make
any such alteration, Tenant will, at Tenant's expense, and in compliance with
all the covenants, agreements, terms, provisions and conditions of this Lease,
including but not limited to, Section 5.01(b) hereof, make such alteration and
Tenant, at Tenant's expense, will promptly and duly perform all the conditions
of such undertaking and that all such conditions of such undertaking shall be
deemed to constitute provisions of this Lease to be kept or performed on the
part of Tenant with the same force and effect as if same had been set forth
herein.
SECTION 9.02. In the event that a notice of termination shall be
given by Landlord under the provisions of this Article 9 and such notice
shall not become ineffective as hereinbefore provided, this Lease and the
term and estate hereby granted shall expire as of the date specified therefor
in such notice with the same effect as if that were the date hereinbefore set
for the expiration of the full term of this Lease, and the fixed rent payable
hereunder shall be apportioned as of such date of termination.
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ARTICLE 10
ACCIDENTS TO PLUMBING AND OTHER SYSTEMS
SECTION 10.01. Tenant shall give to Landlord prompt written notice
of any damage to, or defective condition in, any part or appurtenance of the
Building's plumbing, electrical, heating, air conditioning or other systems
serving, located in, or passing through, the premises. Following such notice,
any such damage or defective condition shall be remedied by Landlord with
reasonable diligence, but if such damage or defective condition was caused by,
or resulted from the use by, Tenant or by the employees, agents, licensees or
invitees of Tenant, the cost of the remedy thereof shall be paid by Tenant.
Tenant shall not be entitled to claim any damages arising from any such damage
or defective condition unless the same shall have been caused by the negligence
of Landlord in the operation or maintenance of the premises or Building and the
same shall not have been remedied by Landlord with reasonable diligence after
written notice thereof from Tenant to Landlord; nor shall Tenant be entitled to
claim any eviction by reason of any such damage or defective condition.
ARTICLE 11
NOTICES
SECTION 11.01. Any notice, consent, approval, demand or statement
hereunder by either party to the other party shall be in writing and shall be
deemed to have been duly given if sent by registered or certified mail,
return receipt requested, addressed to such other party, which address for
Landlord shall be the address as hereinbefore set forth with a copy to
Cushman & Wakefield, Inc., 529 Fifth Avenue, New York, New York 10017,
Attention: William Butler, and for Tenant shall be the premises (or Tenant's
address as hereinbefore set forth if mailed prior to Tenant's occupancy of
the premises), or if the address of such other party for notices shall have
been duly changed as herein provided, if mailed, as aforesaid, to such other
party at such changed address. Either party may at any time change the
address for such notices, consents, approvals, demands or statements by
mailing, as aforesaid, to the other party a notice stating the change and
setting forth the changed address. If the term Tenant as used in this Lease
refers to more than one person, any notice, consent, approval, demand or
statement given as aforesaid to any one of such persons shall be deemed to
have been duly given to Tenant.
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CONDITIONS OF LIMITATION
SECTION 12.01. This Lease and the term and estate hereby granted are
subject to the limitation that:
(a) in case Tenant shall make an assignment of its property for
the benefit of creditors or shall file a voluntary petition under any
bankruptcy or insolvency law, or an involuntary petition under any bankruptcy
or insolvency law shall be filed against Tenant and such involuntary petition
is not dismissed within sixty (60) days after the filing thereof,
(b) in case a petition is filed by or against Tenant under the
Reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, unless such petition under said
Reorganization provisions be one filed against Tenant which is dismissed within
sixty (60) days after its filing,
(c) in case Tenant shall file a petition under the Arrangement
provisions of the United States Bankruptcy Act or under the provisions of any
law of like import,
(d) in case a permanent receiver, trustee or liquidator shall be
appointed for Tenant or of or for the property of Tenant, and such receiver,
trustee or liquidator shall not have been discharged within sixty (60) days
from the date of his appointment,
(e) in case Tenant shall default in the payment of any fixed rent
or additional rent or any other charge payable hereunder by Tenant to
Landlord on any date upon which the same becomes due, and such default shall
continue for five (5) days after Landlord shall have given to Tenant a
written notice specifying such default,
(f) in case Tenant shall default in the due keeping, observing or
performance of any covenant, agreement, term, provision or condition of this
Lease on the part of Tenant to be kept, observed or performed (other than a
default of the character referred to in clauses (e) or (f) of this Section
12.01), and if such default shall continue and shall not be remedied by
Tenant within fifteen (15) days after Landlord shall have given to Tenant a
written notice specifying the same, or, in the case of such a default which
for causes beyond Tenant's control cannot with due diligence be cured within
said period of fifteen (15) days, if Tenant (i) shall
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not, promptly upon the giving of such notice, advise Landlord in writing of
Tenant's intention to take all steps necessary to remedy such default with due
diligence, (ii) shall not duly institute and thereafter diligently prosecute
to completion all steps necessary to remedy the same, or (iii) shall not
remedy the same within a reasonable time after the date of the giving of said
notice by Landlord,
(g) in case any event shall occur or any contingency shall
arise whereby this Lease or the estate hereby granted or the unexpired balance
of the term hereof would, by operation of law or otherwise, devolve upon or
pass to any firm, association, corporation, person or entity other than Tenant
except as expressly permitted under Article 25 hereof, or whenever Tenant shall
desert or abandon the premises or the same shall become vacant (whether the
keys be surrendered or not and whether the rent be paid or not), or
(h) in case any other lease held by Tenant from Landlord
shall expire and terminate (whether or not the term thereof shall then have
commenced) as a result of the default of Tenant thereunder or of the occurrence
of an event as therein provided (other than by expiration of the fixed term
thereof or pursuant to a cancellation or termination option therein contained),
then, in any of said cases, Landlord may give to Tenant a notice of intention
to end the term of this Lease at the expiration of three (3) days from the
date of the giving of such notice, and, in the event such notice is given, this
Lease and the term and estate hereby granted (whether or not the term shall
theretofore have commenced) shall expire and terminate upon the expiration of
said three (3) days with the same effect as if that day were the date
hereinbefore set for the expiration of the full term of this Lease, but Tenant
shall remain liable for damages as provided in this Lease or pursuant to law.
If the term "Tenant", as used in this Lease, refers to more than one person,
then as used in clauses (a), (b), (c), (d) and (i) of this Section 12.01, said
term shall be deemed to include all of such persons or any one of them; if any
of the obligations of Tenant under this Lease is guaranteed, the term "Tenant"
as used in said clauses, shall be deemed to include also the guarantor or, if
there be more than one guarantor, all or any one of them; and, if this Lease
shall have been assigned, the term "Tenant", as used in said clauses, shall be
deemed to include the assignee and the assignor or either of them under any
such assignment unless Landlord shall, in connection with such assignment,
release
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the assignor from any further liability under this Lease, in which event the
term "Tenant", as used in said clauses, shall not include the assignor so
released.
ARTICLE 13
REENTRY BY LANDLORD
SECTION 13.01. If Tenant shall default in the payment of any fixed
rent or additional rent or any other charge payable hereunder by Tenant to
Landlord on any date upon which the same becomes due, or if this Lease shall
terminate as in Article 12 hereof provided, Landlord or Landlord's agents and
servants may immediately or at any time thereafter reenter into or upon the
premises, or any part thereof, in the name of the whole, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or by
force or otherwise, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold and enjoy the premises again as and of its
first estate and interest therein. The words "reenter," "reentry" and
"reentering" as used in this Lease are not restricted to their technical legal
meanings.
SECTION 13.02. In the event of any termination of this Lease
under the provisions of Article 12 hereof or in the event that Landlord shall
reenter the premises under the provisions of this Article 13 or in the event
of the termination of this Lease (or of reentry) by or under any summary
dispossess or other proceeding or action or other measure undertaken by
Landlord for the enforcement of its, aforesaid right of reentry or any
provision of law (any such termination of this Lease being hereinafter called
a "Default Termination"), Tenant shall thereupon pay to Landlord the fixed
rent, additional rent and any other charge payable hereunder by Tenant to
Landlord up to the time of such Default Termination or of such recovery of
possession of the premises by Landlord, as the case may be, and shall also
pay to Landlord damages as provided in Article 14 hereof or pursuant to law.
Also, in the event of a Default Termination Landlord shall be entitled to
retain all moneys, if any, paid by Tenant to Landlord, whether as advance
rent, security or otherwise, but such moneys shall be credited by Landlord
against any fixed rent, additional rent or any other charge due from Tenant
at the time of such Default Termination or, at Landlord's option, against any
damages payable by Tenant under Article 14 hereof or pursuant to law.
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SECTION 13.03. In the event of a breach or threatened breach on
the part of Tenant with respect to any of the covenants, agreements, terms,
provisions or conditions on the part of or on behalf of Tenant to be kept,
observed or performed, Landlord shall also have the right of injunction.
The specified remedies to which Landlord may resort hereunder are cumulative
and are not intended to be exclusive of any other remedies or means of
redress to which Landlord may lawfully be entitled at any time, and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies
were not herein provided for.
ARTICLE 14
DAMAGES
SECTION 14.01. In the event of a Default Termination of this Lease,
Tenant will pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such Default Termination
represents the then value of the excess, if any, of (1) the aggregate of the
fixed rent and the additional rent under Article 26 hereof (if any) which would
have been payable hereunder by Tenant for the period commencing with the day
following the date of such Default Termination and ending with the date
hereinbefore set for the expiration of the full term hereby granted, over (2)
the aggregate rental value of the premises for the same period, or
(b) sums equal to the aggregate of the fixed rent and the additional
rent under Article 26 hereof (if any) which would have been payable by Tenant
had this Lease not terminated by such Default Termination, payable upon
the due date therefor specified herein following such Default Termination and
until the date hereinbefore set for the expiration of the full term hereby
granted; provided, however, that if Landlord shall relet all or any part of
the premises for all or any part of said period, Landlord shall credit Tenant
with the net rents received by Landlord from such reletting, such net rents
to be determined by first deducting from the gross rents as and when received
by Landlord from such reletting the expenses incurred or paid by Landlord in
terminating this Lease and of re-entering the premises and of securing
possession thereof, as well as the expenses of reletting, including altering
and preparing the premises for new tenants, brokers' commissions and all
other expenses properly chargeable against the premises and the rental
therefrom in connection with such reletting,
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it being understood that any such reletting may be for a period equal to or
shorter or longer than said period; provided, further that (i) in no event
shall Tenant be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder, (ii) in no event shall Tenant be
entitled, in any suit for the collection of damages pursuant to this clause
(b), to a credit in respect of any net rents from a reletting except to the
extent that such net rents are actually received by Landlord prior to the
commencement of such suit, and (iii) if the premises or any part thereof should
be relet in combination with other space, then appropriate apportionment on a
square foot rentable area basis shall be made of the rent received from such
reletting and of the expenses of reletting.
For the purposes of subdivision (a) of this Section 14.01, the
amount of additional rent which would have been payable by Tenant under Article
26 hereof, for each Tax Year and/or Operation Year (as hereinafter defined)
ending after such Default Termination, shall be deemed to be an amount equal to
the amount of such additional rent payable by Tenant for the Tax Year and/or
Operation Year (as the case may be) ending immediately preceding such Default
Termination. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired but
for such Default Termination.
SECTION 14.02. Nothing herein contained shall be construed as
limiting or precluding the recovery by Landlord against Tenant of any sums or
damages to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the
part of Tenant.
ARTICLE 15
WAIVERS BY TENANT
SECTION 15.01. Tenant, for Tenant, and on behalf of any and all
firms, corporations, associations, persons or entities claiming through or
under Tenant, including creditors of all kinds, does hereby waive and surrender
all right and privilege which they or any of them might have under or by reason
of any present or future law to redeem the premises or to have a continuance of
this Lease for the full term hereby
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demised after Tenant is dispossessed or ejected therefrom by process of law or
under the terms of this Lease or after the expiration or termination of this
Lease as herein provided or pursuant to law. Tenant also waives the provisions
of any law relating to notice and/or delay in levy of execution in case of an
eviction or dispossess, and of any other law of like import now or hereafter in
effect. If Landlord commences any summary proceeding, Tenant agrees that
Tenant will not interpose any counterclaim of whatever nature or description in
any such proceeding, but Tenant may bring an independent action therefor.
ARTICLE 16
WAIVER OF TRIAL BY JURY
SECTION 16.01. It is mutually agreed by and between Landlord and
Tenant that, except in the case of any action, proceeding or counterclaim
brought by either of the parties against the other for personal injury or
property damage, the respective parties hereto shall, and they hereby do,
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matters whatsoever arising out
of or in any way connected with this Lease, the relationship of landlord and
tenant, Tenant's use or occupancy of the premises, and any emergency or any
other statutory remedy.
ARTICLE 17
ELEVATORS, CLEANING, HEATING, AIR CONDITIONING,
SERVICES, ETC.
SECTION 17.01. Landlord will provide elevator facilities during
Business Hours (as hereinafter defined) and have one passenger elevator subject
to call during the other hours. Heat, for the warming of the premises and the
public portions of the Building, will be supplied by Landlord during Business
Hours when and as required by law. "Business Hours", as used in this Lease,
means the generally customary daytime business hours of Tenant (but not before
9:00 A.M. or after 6:00 P.M.) of days other than Saturdays, Sundays and
holidays, and "holidays", as used in this Lease means all days observed by the
State or Federal Government as legal holidays. Landlord will clean the
premises provided the same are kept in order by Tenant, except any portions of
the premises which may be used for the preparation, dispensing or consumption
of food or beverages or for storage, shipping room, classroom or similar pur-
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poses or for the operation of computer, data processing or similar equipment,
all of which portions Tenant shall cause to be kept clean at Tenant's own
expense. The Cleaning Specifications attached hereto are hereby made a part
hereof.
SECTION 17.02. Landlord shall, through the air conditioning system,
furnish to, and distribute in, the premises air conditioning during Business
Hours during the period May 15th to September 15th when in the judgement of
Landlord, reasonably exercised, it may be required for the comfortable
occupancy of the premises by Tenant and during Business Hours during other
months of the year ventilate the Premises. Tenant agrees to lower and close
the blinds when necessary because of the sun's position whenever said air
conditioning system is in operation, and Tenant agrees at all times to cooper-
ate fully with Landlord and to abide by all the regulations and requirements
which Landlord may prescribe for the proper functioning and protection of said
air conditioning system. In addition to any and all other rights and remedies
which Landlord may invoke for any violation by Tenant of this Article 17,
Landlord may discontinue the furnishing of such air conditioning service
without any diminution or abatement of rent or other compensation to Tenant
whatsoever. Landlord shall at all times have free and unrestricted access to
any and all air conditioning facilities in the premises. Landlord shall not be
required to furnish, and Tenant shall not be entitled to receive, any air
conditioning during any period wherein Tenant shall be in default in the
payment of fixed rent or additional rent as specified in this Lease.
SECTION 17.03. Landlord will, when and to the extent reasonably
requested by Tenant, furnish additional elevator, air conditioning, heating
and/or cleaning services upon such terms and conditions as shall be determined
by Landlord in its sole discretion; and Tenant shall pay to Landlord promptly
on demand as additional rent Landlord's charge for such additional services,
which charge shall be Landlord's prevailing rate to other tenants of the
Building. Without limiting the generality of the next preceding sentence,
Tenant shall pay to Landlord Landlord's charge for (a) any cleaning of the
Building or any part thereof required because of the material carelessness or
indifference of Tenant, (b) any cleaning done at the request of Tenant of any
portions of the premises which may be used for the preparation, dispensing or
consumption of food or beverages or for storage, shipping room, classroom or
similar purposes or for the operation of computer, data processing or similar
equipment, and (c) the removal of any of Tenant's refuse and rubbish from the
Building, except re-
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fuse and rubbish arising from ordinary cleaning by Landlord as specified in
Section 17.01 hereof. Tenant shall pay to Landlord an amount equal to any
increase in the cost to Landlord for cleaning the premises if such increase
shall be due to (i) the use of the premises by Tenant during hours other than
Business Hours or (ii) the installation in the premises, at the request of or by
Tenant, of any materials or finish other than those which are of the standard
adopted by Landlord for the Building.
SECTION 17.04. At any time or times all or any of the elevators in the
Building may, at the option of Landlord, be manual and/or automatic elevators,
and Landlord shall be under no obligation to furnish an elevator operator for
any automatic elevator. If Landlord shall at any time or times furnish any
elevator operator for any automatic elevator, Landlord may discontinue
furnishing such elevator operator without any diminution, reduction or abatement
of rent.
SECTION 17.05. Landlord reserves the right, without liability to
Tenant and without constituting any claim of constructive eviction, to stop or
interrupt any heating, elevator, escalator, lighting, ventilating, air
conditioning, gas, steam, power, electricity, water, cleaning or other service
and to stop or interrupt the use of any Building facilities such times as may be
necessary and for as long as may at reasonably be required by reason of
accidents, strikes, or the making of repairs, alterations or improvements, or
inability to secure a proper supply of fuel, gas, steam, water, electricity,
labor or supplies, or by reason of any other similar or dissimilar cause beyond
the reasonable control of Landlord. No such stoppage or interruption shall
entitle Tenant to any diminution or abatement of rent or other compensation nor
shall this Lease or any of the obligations of Tenant be affected or reduced by
reason of any such stoppage or interruption.
ARTICLE 18
LEASE CONTAINS ALL AGREEMENTS--NO WAIVERS
SECTION 18.01. This Lease contains all of the covenants, agreements,
terms, provisions and conditions relating to the leasing of the premises
hereunder, and Landlord has not made and is not making, and Tenant in executing
and delivering this Lease is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same may expressly be set
forth in this Lease.
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SECTION 18.02. The failure of Landlord to insist in any instance upon
the strict performance of any provision of this Lease or to exercise any
election herein contained shall not be construed as a waiver or relinquishment
for the future of such provision or election, but the same shall continue and
remain in full force and effect. No waiver or modification by Landlord of any
provision of this Lease or other right or benefit shall be deemed to have been
made unless expressed in writing and signed by Landlord. No surrender of the
premises or of any part thereof or of any remainder of the term of this Lease
shall be valid unless accepted by Landlord in writing. Any breach by Tenant of
any provision of this Lease shall not be deemed to be waived by (a) the receipt
and retention by Landlord of fixed rent or additional rent from anyone other
than Tenant or (b) the acceptance of such other person as a tenant or (c) a
release of Tenant from the further performance by Tenant of the provisions of
this Lease or (d) the receipt and retention by Landlord of fixed rent or
additional rent with knowledge of the breach of any provision of this Lease. No
payment by Tenant or receipt or retention by Landlord of a lesser amount than
any fixed rent or additional rent herein stipulated shall be deemed to be other
than on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as such
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided. No executory agreement
hereafter made between Landlord and Tenant shall be effective to change, modify,
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such executory agreement is in writing, refers
expressly to this Lease and is signed by the party against whom enforcement of
the change, modification, waiver, release, discharge or termination or
effectuation of the abandonment is sought.
ARTICLE 19
PARTIES BOUND
SECTION 19.01. The covenants, agreements, terms, provisions and
conditions of this Lease shall bind and benefit the respective successors,
assigns and legal representatives of the parties hereto with the same effect as
if mentioned in each instance where a party hereto is named or referred to,
except that no violation of the provisions of Article 25 hereof shall operate to
vest any rights in any successor, assignee or
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legal representative of Tenant and that the provisions of this Article 19 shall
not be construed as modifying the conditions of limitation contained in Article
12 hereof. It is understood and agreed, however, that the covenants and
obligations on the part of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building, that in the event of such a transfer said
covenants and obligations shall thereafter be binding upon each transferee of
such interest of Landlord herein named, but only with respect to the period
ending with a subsequent transfer of such interest, and that a lease of the
entire interest shall be deemed a transfer within the meaning of this Article
19.
SECTION 19.02. If Tenant is a partnership (or is comprised of two (2)
or more persons, individually and/or as co-partners of a partnership) or if
Tenant's interest in this Lease shall be assigned to a partnership (or to two
(2) or more persons, individually and/or as co-partners of a partnership)
pursuant to Article 25 (any such partnership and such persons are referred to in
this Section as "Partnership Tenant"), the following provisions of this Section
shall apply to such Partnership Tenant: (a) the liability of each of the parties
comprising Partnership Tenant shall be joint and several, and (b) each of the
parties comprising Partnership Tenant hereby consents in advance to, and agrees
to be bound by, any written instrument which may hereafter be executed,
changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the premises to Landlord or renewing or
extending this Lease and by any notices, demands requests or other
communications which may hereafter be given, by Partnership Tenant or by any of
the parties comprising Partnership Tenant, and (c) any bills, statements,
notices, demands; requests or other communications given or rendered to
Partnership Tenant or to any of the parties comprising Partnership Tenant shall
be deemed given or rendered to Partnership Tenant and to all such parties and
shall be binding upon Partnership Tenant and all such parties, and (d) if
Partnership Tenant shall admit new partners, all of such new partners shall, by
their admission to Partnership Tenant, be deemed to have assumed performance of
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and (e) Partnership Tenant shall give prompt notice to
Landlord of the admission of any such new partners, and upon demand of Landlord,
shall cause each such new partner to execute and deliver to Landlord an
agreement in form satisfactory to Landlord, wherein each such new partner shall
assume performance of all of the terms, covenants and conditions of
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this Lease on Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new partner to
execute or deliver any such agreement to Landlord shall vitiate the provisions
of subdivision (d) of this Section).
ARTICLE 20
CURING TENANT'S DEFAULTS--ADDITIONAL RENT
SECTION 20.01. If Tenant shall default in the keeping, observance or
performance of any provision or obligation of this Lease, Landlord, without
thereby waiving such default, may perform the same for the account and at the
expense of Tenant, without notice in a case of emergency and in any other case
if such default continues after three (3) days from the date of the giving by
Landlord to Tenant of written notice of intention so to do. Bills for any
expense incurred by Landlord in connection with any such performance by Landlord
for the account of Tenant, and bills for all costs, expenses and disbursements
of every kind and nature whatsoever, including, but not limited to, reasonable
counsel fees, involved in collecting or endeavoring to collect the fixed rent or
additional rent or other charge or any part thereof or enforcing or endeavoring
to enforce any rights against Tenant, under or in connection with this Lease, or
pursuant to law, including (without being limited to) any such cost, expense and
disbursement involved in instituting and prosecuting any action or proceeding
(including any summary dispossess proceeding), as well as bills for any
property, material, labor or services provided, furnished or rendered, or caused
to be provided, furnished or rendered, by Landlord to Tenant including (without
being limited to) electric lamps and other equipment, construction work done for
the account of Tenant, water, towel and other services, as well as for any
charges for any additional elevator, heating, air conditioning or cleaning
services incurred under Article 17 hereof and any charges for other similar or
dissimilar services incurred under this Lease, may be sent by Landlord to Tenant
monthly, or immediately, at Landlord's option, and shall be due and payable in
accordance with the terms of said bills, and if not paid when due, the amounts
thereof shall immediately become due and payable as additional rent under this
Lease. If any fixed rent, additional rent or any other costs, expenses or
disbursements payable under this Section by Tenant to Landlord are not paid when
due, the same shall bear interest at the rate of one percent (1%) per month or
the maximum rate permitted by law, whichever is less, from the due date thereof
until paid and
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the amount of such interest shall be additional rent.
SECTION 20.02. In the event that Tenant is in arrears in payment of
fixed rent or additional rent or any other charge, Tenant waives Tenant's right,
if any, to designate the items against which any payments made by Tenant are to
be credited, and Tenant agrees that Landlord may apply any payments made by
Tenant to any items Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such payments
shall be credited. However, such waiver shall not be deemed to constitute a
waiver by Tenant with respect to any payment disputed by Tenant. Landlord
reserves the right, without liability to Tenant without constituting any claim
of constructive eviction, to suspend furnishing or rendering to Tenant any
property, material, labor, utility or other service, wherever Landlord is
obligated to furnish or render the same at the expense of Tenant, in the event
that (but only so long as) Tenant is in arrears in paying Landlord therefor.
However, such waiver shall not be deemed to constitute a waiver by Tenant with
respect to any payment disputed by Tenant.
ARTICLE 21
INABILITY TO PERFORM
SECTION 21.01. This Lease and the obligations of Tenant to pay rent
hereunder and perform all of the other covenants, agreements, terms, provisions
and conditions hereunder on the part of Tenant to be performed shall in no wise
be affected, impaired or excused because Landlord is unable to fulfill any of
its obligations under this Lease or is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to make
or is delayed in making any repairs, replacements, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of strikes
or labor troubles or any other similar or dissimilar cause whatsoever beyond
Landlord's reasonable control, including, but not limited to, governmental
preemption in connection with a national emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any governmental
agency or by reason of the conditions of supply and demand which have been or
are affected by war, hostilities or other similar or dissimilar emergency.
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ARTICLE 22
ADJACENT EXCAVATION--SHORING
SECTION 22.01. If an excavation shall be made upon land adjacent to or
under the Building, or shall be authorized to be made, Tenant shall afford to
the person causing or authorized to cause such excavation, license to enter upon
the premises for the purpose of doing such work as said person shall deem
necessary or desirable to preserve the Building from injury or damage and to
support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
ARTICLE 23
ARTICLE HEADINGS
SECTION 23.01. The Article headings of this Lease are for convenience
only and are not to be considered in construing the same.
ARTICLE 24
ELECTRICITY AND WATER
SECTION 24.01. For the purpose of this Article the term "Electric
Rate" shall mean an amount equal to the cost to Landlord per kilowatt hour,
including taxes, demand charges, fuel factors, transfer adjustment factors or
any other charge of the utility for electricity, for the cost of all the
electricity purchased for the Building for the various billing periods being
used in the determination of the amount to be included in fixed rent.
SECTION 24.02. Subject to the provisions of this Article, Landlord
shall furnish the electric energy that Tenant shall require in the premises for
the purposes permitted under this Lease on a "rent inclusion basis' and there
shall be no charge to Tenant for such electric energy by way of measuring the
same on any meter or otherwise, such electric energy being included in
Landlord's services which are covered by the fixed rent. The amount to be so
included in the fixed rent shall be determined from time to time as hereinafter
provided in this Article; and Landlord and Tenant agree that pending the initial
determination, the amount of the annual fixed rent set forth in Article 1
includes the annual sum of $39,650.00 for electric energy on a rent inclusion
basis. Such determination
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shall take into account, among other things, any special electric energy
requirements of Tenant and whether Tenant is utilizing electric energy at times
other than Business Hours. Landlord shall furnish and install, at Tenant's
expense, all replacement lighting tubes, lamps, bulbs and ballasts required in
the premises. Within one year after the term commencement date and, at
Landlord's or Tenant's option, from time to time thereafter (but not more
frequently than annually) an electric consultant, selected by Landlord in the
case of the initial survey or by the party requesting the survey in the case of
a later survey, shall make a survey of the electric lighting power load in the
premises to determine the average monthly electric current consumption therein.
The cost of each such survey shall be borne by the party who requests it. The
findings of the consultant as to any increase or decrease in the fixed rent
based on such average monthly electric current consumption and the determination
of Landlord's consultant under Section 24.05 shall be conclusive and binding
upon the parties unless within 30 days after either Landlord or Tenant notifies
the other party in writing of the results of such survey or of a determination
under Section 24.05 as determined by its expert or consultant, the second party,
upon written notice to the other given within such 30 day period, promptly
causes a like survey, inspection and determination to be made by an independent
electrical engineer or consultant selected by it and paid solely by it. If
Landlord or Tenant, as the case may be, so elects, upon completion of the second
survey, inspection and determination, that party shall notify the other of the
results of its survey as determined by the second expert or consultant. If such
determination differs from that made by the expert or consultant, selected by
Landlord in the case of the initial survey or the first expert or consultant in
the case of later surveys, the matter shall be referred for resolution to the
two experts or consultants selected, respectively, by Landlord and Tenant. If
the two engineers or consultants shall not reach unanimous agreement within 30
days after the matter is referred to them for resolution, then the two shall
appoint a third independent electrical engineer or consultant, and the three
engineers or consultants shall determine the matter submitted to them; provided,
however, that if the two engineers or consultants are unable to agree upon the
appointment of a third engineer or consultant within 15 days after they become
obligated so to do, the parties shall apply to the American Arbitration
Association in New York, New York, for the appointment of such engineer or
consultant. A decision of a majority of said engineers or consultants shall be
final and binding upon Landlord and Tenant. All costs and expenses incurred in
connection with the third engineer or consultant
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shall be paid equally by the parties. Any such increase, or decrease resulting
from the initial survey shall be effective as of the term commencement date, and
any such increase or decrease resulting from a subsequent survey shall be
effective as of the date of the change in usage. The initial unpaid amount of
each such increase or decrease shall be paid to Landlord or Tenant, as the case
may be, within ten (10) days after Landlord furnishes Tenant with a statement
thereof, and shall be made by Tenant in accordance with Landlord's statements
even if Tenant disputes the correctness thereof and if a refund is finally
agreed upon or determined to be due to Tenant within ten (10) days after such
agreement or determination. Thereafter, each such increase or decrease shall be
added to or deducted from the fixed rent payable monthly on the first day of
each and every month during the term of this lease, in advance.
SECTION 24.04. Tenant's use of electric energy in the Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Premises. In order to insure that such
capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance, which consent shall not be unreasonably withheld in connection
with the Tenant Changes contemplated for Tenant's initial occupancy of the
premises, connect any fixtures, appliances or equipment to the Building's
electric distribution system or make any material alteration or addition to the
electric system of the premises existing on the term commencement date and will
promptly advise Landlord of any other alteration or addition to such electrical
appliances or equipment. Should Landlord grant such consent, all additional
risers or other equipment required therefor shall be provided by Landlord and
the cost thereof shall be paid by Tenant to Landlord on demand.
SECTION 24.05. If at any time during the term of this lease the
Electric Rate shall change, then, effective as of the date of the change in the
Electric Rate, the sum included in the fixed rent under this Article shall be
increased or decreased to reflect such change in the Electric Rate (as
determined by an electrical consultant selected by Landlord, whose determination
shall be binding and conclusive upon the parties except as provided in Section
24.03).
SECTION 24.06. The adjustments in the fixed rent under the preceding
Sections of this Article shall be made with reference to (a) the Electric Rate
in effect at the time
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each such adjustment shall be effective, and (b) the then effective
determination of the average monthly electric consumption in the Premises.
SECTION 24.07. The parties shall execute, acknowledge and deliver to
each other a supplemental agreement in such form as Landlord shall reasonably
require to reflect each change in the fixed rent under this Article, but any
such change shall be effective as of the effective date described in the Section
under which such change is provided for, even if such agreement is not executed
and delivered.
SECTION 24.08. Landlord reserves the right to discontinue furnishing
electric energy to Tenant in the premises at any time upon not less than 90
days' notice to Tenant. If Landlord exercises such right, this Lease shall
continue in full force and effect and shall be unaffected thereby, except that
from and after the effective date of such termination Landlord shall not be
obligated to furnish electric energy to Tenant and the fixed rent payable under
this Lease shall be reduced to what the fixed rent would then have been but for
the adjustments under this Article. If Landlord so discontinues furnishing
electric energy to Tenant, Tenant shall arrange to obtain electric energy
directly from the public utility company furnishing electric energy to the
Building. Such electric energy may be furnished to Tenant by means of the then
existing building system feeders, risers and wiring to the extent that the same
are available, suitable and safe for such purpose. All meters and additional
panel boards, feeders, risers, wiring and other conductors and equipment which
may be required to obtain electric energy directly from such public utility
company shall be furnished and installed by Landlord.
SECTION 24.09. Where water is furnished by Landlord for purposes other
than for (i) normal office use, (ii) Landlord's air conditioning equipment
during Business Hours, and (iii) drinking, lavatory or toilet facilities in the
premises, Tenant shall pay a reasonable amount for the same and for any required
pumping and heating thereof as well as any taxes, sewer rents or other charges
which may be imposed by the city or other governmental authority or agency
thereof based on the quantity of water so used by Tenant.
SECTION 24.10. Landlord shall in no way be liable or responsible to
Tenant for any loss or damage or expense which Tenant may sustain or incur by
reason of any failure, inadequacy or defect in the character, quantity or supply
of electricity or water furnished to the premises.
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ARTICLE 25
ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
SECTION 25.01. Tenant shall not, whether voluntarily, involuntarily,
or by operation of law or otherwise (a) assign or otherwise transfer this Lease
or the term and estate hereby granted, or advertise to do so, (b) sublet the
premises or any part thereof, or advertise to do so, or allow the same to be
used, occupied or utilized by any one other than Tenant, or (c) mortgage,
pledge, encumber or otherwise hypothecate this Lease or the premises or any part
thereof in any manner whatsoever, without in each instance obtaining the prior
written consent of Landlord.
SECTION 25.02. If Tenant is a corporation, the provisions of
subdivision (a) of Section 25.01 shall apply to a transfer of a majority of the
stock of Tenant (other than a transfer to the heirs, executors or administrators
of the present majority shareholder of Tenant, but any subsequent transfer shall
be subject to the provisions of subdivision (a) of Section 25.01) but shall not
apply to transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred or
to any corporation which controls or is controlled by Tenant or is under common
control with Tenant, provided that in any of such events the successor to Tenant
has a net worth computed in accordance with generally accepted accounting
principles equal to or greater than the net worth of Tenant immediately prior to
such merger, consolidation or transfer.
SECTION 25.03. If this lease be assigned, whether or not in violation
of the provisions of this Lease, Landlord may collect rent from the assignee. If
the premises or any part thereof are sublet or used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, and expiration of Tenant's time to cure such default, collect
rent from the subtenant or occupant. In either event, Landlord may apply the net
amount collected to the fixed rent and additional rent herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
any of the provisions of Section 25.01, or the acceptance of the assignee,
subtenant or occupant as tenant, as a release of Tenant from the performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered
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to relieve Tenant from obtaining the express written consent of Landlord to any
other or further assignment, mortgaging or subletting or use or occupancy by
others not expressly permitted by this Article. References in this Lease to
use or occupancy by others, that is anyone other than Tenant, shall not be
construed as limited to subtenants and those claiming under or through
subtenants but as including also licensees and others claiming under or through
Tenant, immediately or remotely.
SECTION 25.04. Any assignment or transfer, whether made with or
without Landlord's consent pursuant to Section 25.01 or Section 25.02, shall be
made only if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee shall assume the obligations of
this Lease on the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions in Section 25.01 shall, notwithstanding
such assignment or transfer, continue to be binding upon it in respect of all
future assignments and transfers. The original named Tenant covenants that,
notwithstanding any assignment or transfer, whether or not in violation of the
provisions of this lease, and notwithstanding the acceptance of fixed rent
and/or additional rent by Landlord from an assignee, transferee, or any other
party, the original named Tenant shall remain fully liable for the payment of
the fixed rent and additional rents and for the other obligations of this Lease
on the part of Tenant to be performed or observed.
SECTION 25.05. The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this Lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease.
SECTION 25.06. Notwithstanding anything contained to the contrary in
Sections 25.01 or 25.02 of this Article, if Tenant shall at any time or times
during the term of this Lease desire to assign this Lease (other than an
assignment to be made pursuant to Sections 25.01 or 25.02) or sublet all or part
of (other than a subletting to be made pursuant to Section 25.01 or Section
25.02) the premises, Tenant shall give notice thereof to Landlord, which notice
shall be accompanied
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by (a) a conformed or photostatic copy of the proposed assignment or sublease,
the effective or commencement date of which shall be at least 45 days after the
giving of such notice, (b) a statement setting forth in reasonable detail the
identity of the proposed assignee or subtenant, the nature of its business and
its proposed use of the premises, and (c) current financial information with
respect to the proposed assignee or sub-tenant, including, without limitation,
its most recent financial report. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) may, at its option
(i) sublease such space from Tenant upon the terms and conditions hereinafter
set forth (if the proposed transaction is a sublease of part of the premises for
a term, including renewal options, which does not extend into the last two years
of the Lease), (ii) terminate this Lease (if the proposed transaction is an
assignment or a sublease of all of the premises), or (iii) terminate this Lease
with respect to the space covered by the proposed sublease (if the proposed
transaction is a sublease of part of the premises other than a sub-lease
referred to in clause (i) hereof). Said option may be exercised by Landlord by
notice to Tenant at any time within 45 days after such notice has been given by
Tenant to Landlord; and during such 45-day period Tenant shall not assign this
Lease or sublet such space to any person.
SECTION 25.07. If Landlord exercises its option to terminate this
Lease in the case where Tenant desires either to assign this Lease or sublet all
of the premises, then, this Lease shall end and expire on the date that such
assignment or sublet was to be effective or commence, as the case may be, and
the fixed rent and additional rent shall be paid and apportioned to such date.
SECTION 25.08. If Landlord exercises its option to terminate this
Lease in part, in any case where Tenant desires to sublet part of the premises,
then, (a) this Lease shall end and expire with respect to such part of the
premises on the date that the proposed sublease was to commence; (b) from and
after such date the fixed rent and additional rent shall be adjusted, based upon
the proportion that the rentable area of the premises remaining bears to the
total rentable area of the premises; and (c) Tenant shall pay to Landlord, upon
demand, the costs incurred by Landlord in physically separating such part of the
premises from the balance of the Premises.
SECTION 25.9. If Landlord exercises its option to sublet the
portion(s) of the premises which Tenant desires to sublet, such sublease to
Landlord or its designee (as subtenant)
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shall be at the lower of (i) the rental rate per rentable square foot of fixed
rent and additional rent then payable pursuant to this Lease or (ii) the rentals
set forth in the proposed sublease, and shall be for the same term as that of
the proposed subletting, and:
(a) The sublease shall be expressly subject to all of the
covenants, agreements, terms, provisions and conditions of this
Lease except such as are irrelevant or inapplicable, and except
as otherwise expressly set forth to the contrary in this Section;
(b) Such sublease shall be upon the same terms and conditions
as those contained in the proposed sublease, except such as are
irrelevant or inapplicable and except as otherwise expressly set
forth to the contrary in this Section;
(c) Such sublease shall give the sublessee the unqualified
and unrestricted right, without Tenant's permission, to assign
such sublease or any interest therein and/or to sublet the space
covered by such sublease or any part or parts of such space and
to make any and all changes, alterations, and improvements in the
space covered by such sublease;
(d) Such sublease shall provide that any assignee or
further subtenant, of Landlord or its designee, may, at the
election of Landlord, be permitted subject to the requirements of
subdivision (c) above, to make alterations, decorations and
installations in such space or any part thereof and shall also
provide in substance that any such alterations, decorations and
installations in such space made therein by any assignee or
subtenant of Landlord or its designee may be removed, in whole or
in part, by such assignee or subtenant, at its option, prior to
or upon the expiration or other termination of such sublease,
provided that such assignee or subtenant, at its expense, shall
repair any damage and injury to such space so sublet caused by
such removal; and
(e) Such sublease shall also provide that
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(i) the parties to such sublease expressly negate any intention
that any estate created under such sublease be merged with any
other estate held by either of said parties, (ii) any assignment
or subletting by Landlord or its designee (as the subtenant) may
be for any purpose or purposes that Landlord, in Landlord's
uncontrolled discretion, shall deem suitable or appropriate (but
no such use shall constitute a default by Tenant), (iii) Tenant,
at Tenants' expense, shall and will at all times provide and
permit reasonably appropriate means of ingress to and egress from
such space so sublet by Tenant to Landlord or its designee, (iv)
Landlord, at Tenant's expense, may make such alterations as may
be required or deemed necessary by Landlord to physically
separate the subleased space from the balance of the premises,
and (v) that at the expiration of the term of such sublease,
Tenant will accept the space covered by such sublease in its then
existing condition, subject to the obligations of the sublessee
to make such repairs thereto as may be necessary to preserve the
premises demised by such sublease in good order and condition and
subject to subdivision (d) above.
25.10. In the event Landlord does not exercise its options pursuant
to Section 25.06 to so sublet the premises or terminate this Lease in whole or
in part and providing that Tenant is not in default of any of Tenant's
obligations under this Lease, Landlord's consent (which must be in writing and
in form satisfactory to Landlord) to the proposed assignment or sublease shall
not be unreasonably withheld, or delayed
(and shall be exercised within the 45-day period referred to in Section 25.06 of
this Article), provided and upon condition that:
(a) Tenant shall have complied with the provisions of Section
25.06 and Landlord shall not have exercised any of its options
under said Section 25.06 within the time permitted therefor;
(b) In Landlord's reasonable judgment the proposed assignee
or subtenant is engaged in a business and the premises, or the
relevant part thereof, will be used in a manner which
(i) is in keeping with the then standards
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of the Building, (ii) is limited to the use expressly permitted
under Section 2.0; and (iii) will not violate any negative
covenant as to use contained in any other lease of space in the
Building;
(c) The proposed assignee or subtenant is a reputable person
of good character and with sufficient financial worth considering
the responsibility involved, and Landlord has been furnished with
reasonable proof thereof;
(d) Neither (i) the proposed assignee or subtenant nor (ii)
any person which, directly or indirectly, controls, is controlled
by, or is under common control with, the proposed assignee or
subtenant or any person who controls the proposed assignee or
subtenant, is not then an occupant of any part of the Building;
(e) The proposed assignee or subtenant is not a person with
whom Landlord is then negotiating to lease space in the Building;
(f) The form of the proposed sublease shall comply with the
applicable provisions of this Article;
(g) There shall not be more than 4 subtenants (including
Tenant, Landlord or its designee) of the premises;
(h) The amount of the aggregate rent to be paid by the
proposed subtenant is not less than 85% of the then current rent
per rentable square foot being asked by Landlord for comparable
space in the Building, and in any event the rental and other
terms and conditions of the sublease are the same as those
contained in the proposed sublease furnished to Landlord pursuant
to Section 25.06;
(i) Tenant shall reimburse Landlord on demand for any costs
that may be incurred by Landlord in connection with said
assignment or sublease, including, without limitation, the
reasonable costs of making investigations
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as to the acceptability of the proposed assignee or subtenant,
and reasonable legal costs incurred in connection with the
granting of any requested consent;
(j) Tenant shall not have (i) advertised in any way the
availability of the premises without prior notice to and approval
by Landlord, nor shall any advertisement state the name (as
distinguished from the address) of the Building or the proposed
rental, or (ii) listed the premises for subletting, whether
through a broker, agent, representative, or otherwise at a rental
rate less than the rate permitted by subdivision (h) of this
Section.
Except for any subletting by Tenant to Landlord or its designee
pursuant to the provisions of this Article, each subletting pursuant to this
Article shall be subject to all of the covenants, agreements, terms, provisions
and conditions contained in this Lease. Notwithstanding any such subletting to
Landlord or any such subletting to any other subtenant and/or acceptance of
rent or additional rent by Landlord from any subtenant, Tenant shall and will
remain fully liable for the payment of the fixed rent and additional rent due
and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part
of Tenant to be performed and all acts and omissions of any licensee or
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any for the obligations of this Lease, and any such violation shall
be deemed to be a violation by Tenant. Tenant further agrees that
notwithstanding any such subletting, no other and further subletting of the
premises by Tenant or any person claiming through or under Tenant (except as
provided in Section 25.9) shall or will be made except upon compliance with and
subject to the provisions of this Article. If Landlord shall decline to give its
consent to any proposed assignment or subtenant or if Landlord shall exercise
any of its options under Section 25.06, Tenant shall indemnify, defend and hold
harmless Landlord against and from any and all loss, liability, damages, costs
and expenses (including reasonable counsel fees) resulting from any claims that
may be made against Landlord by the proposed assignee or subtenant or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
25.11. In the event that (a) Landlord fails to exer-
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cise any of its options under Section 25.06 and consents to a proposed
assignment or sublease, and (b) Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within 60 days after the
giving of such consent, then, Tenant shall again comply with all of the
provisions and conditions of Section 25.06 before assigning this Lease or sub-
letting all or part of the premises.
25.12. With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this lease, it is further agreed:
(a) The subletting shall be for a term ending prior to the
expiration of this Lease.
(b) No sublease shall be valid, and no subtenant shall take
possession of the premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord.
(c) Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease
is or shall be subordinate, and that in the event of termination,
re-entry or dispossess by Landlord under this Lease Landlord may,
at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant
shall, at Landlord's option, attorn to Landlord pursuant to the
then executory provisions of such sublease, except that Landlord
shall not (i) be liable for any previous act or omission of
Tenant under such sublease, (ii) be subject to any offset, not
expressly provided in such sublease, which theretofore accrued to
such subtenant against Tenant, or (iii) be bound by any previous
modification of such sublease or by any previous prepayment of
more than one month's rent.
25.13. If Landlord shall give its consent to any assignment of this
Lease or to any sublease, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment, an amount equal to all sums
and other considerations paid
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to Tenant by the assignee for or by reason of such assignment
(including, but not limited to, sums paid for the sale of
Tenant's fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property, less, in the case of a
sale thereof, the then depreciated cost thereof determined on the
basis of Tenant's federal income tax returns) less any bona fide
brokerage commissions paid by Tenant; and
(b) in the case of a sublease, any rents, additional rent or
other consideration payable under the sublease to Tenant by the
subtenant which is in excess of the fixed rent and additional
rent accruing during the term of the sub-lease in respect of the
subleased space (at the rate per square foot payable by Tenant
here-under) pursuant to the terms hereof (including, but not
limited to, sums paid for the sale or rental of Tenant's
fixtures, leasehold improvements, equipment, furniture or other
personal property, less, inthe case of the sale thereof, the then
depreciated cost thereof determined on the basis of Tenant's
federal income tax returns) less any bona fide brokerage
commissions paid by Tenant. The sums payable under this Section
25.13(b) shall be paid to Landlord as and when received by
Tenant.
25.14. Landlord agrees that if Tenant shall, within one year after the
term commencement date, enter into a sublease or subleases to no more than 2
subtenants, covering not more than 6,000 square feet in the aggregate, located
on the north side of the premises, for a term expiring on or prior the fifth
anniversary of the rent commencement date, then, Landlord's options under
Section 25.06 shall not be applicable to such sublease, however, all of the
other provisions of this Article 25 shall be applicable thereto.
Section 25.15. Landlord will, at the request of Tenant, maintain
listings on the Building directory of the names of Tenant and any other person,
firm, association or corporation in occupancy of the premises or any part
thereof as permitted hereunder, and the names of any officers or employees of
any of the foregoing, provided, however, that the number of names so listed
shall be in the same proportion to the capacity of the Building directory as the
aggregate number of
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square feet of rentable area of the premises is to the aggregate number of
square feet of rentable area of the Building. The listing of any name other than
that of Tenant, whether on the doors of the premises, on the Building directory,
or otherwise, shall not operate to vest any right or interest in this Lease or
in the premises or be deemed to be the written consent of Landlord mentioned in
this Article 25, it being expressly understood that any such Listing is a
privilege extended by Landlord revocable at will by written notice to Tenant.
ARTICLE 26
ESCALATION
SECTION 26.01. As used in this Article 26, the
words and terms which follow mean and include the following:
(a) "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease or such other period of twelve (12) months
occurring during the term of this Lease as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York.
(b) "Operation Year" shall mean each calendar year, subsequent to
the year 1979, in which occurs any part of the term of this Lease.
(c) "Tenant's Proportionate Share" shall mean a fraction whose
denominator is the rentable square foot area of the Building (which shall, for
the purposes of this Article 26, be deemed to be 1,953,901 square feet) and
whose numerator shall be the Area of the Premises.
(d) "Area of the Premises" shall mean the rentable square foot
area of the premises (which shall, for the purposes of this Article 26, be
deemed to be 31,720 square feet).
(e) "Real Estate Taxes" shall mean the aggregate amount of real
estate taxes and assessments imposed upon the Land and Building (including,
without limitation, (i) real estate taxes upon any "air rights" or payable by
the Landlord to a ground lessor with respect thereto and (ii) any assessments
levied after the date of this Lease for public benefits to Land and/or Building
[excluding an amount equal to the assessments payable in whole or in part during
or for the Real
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Estate Tax Base], which assessments, if payable in installments shall be deemed
payable in the maximum number of permissible installments) in the manner in
which such taxes and assessments are imposed as of the date hereof; provided,
that if because of any change in the taxation of real estate, any other tax or
assessment (including, without limitation, any occupancy, gross receipts or
rental tax) is imposed upon Landlord or the owner of the Land and/or Building,
or upon or with respect to the Land and/or Building or the occupancy, rents or
income therefrom, in substitution for, or in addition to, any of the foregoing
Real Estate Taxes, such other taxes or assessment shall be deemed part of the
Real Estate Taxes. With respect to any Tax Year, all expenses, including legal
fees, experts' and other witnesses' fees, incurred in contesting the validity or
amount of any Real Estate Taxes or in obtaining a refund of Real Estate Taxes,
shall be considered as part of the Real Estate Taxes for such Tax Year.
(f) "Real Estate Tax Base" shall mean the Real Estate Taxes for
the Tax Year ending on June 30, 1979.
(g) "Hourly Wage Rate" as respects any Operation Year shall mean:
(1) as to the porters, the minimum hourly wage rate
prescribed to be paid to or on behalf of porters in major office buildings
(hereinafter called "Class A Office Buildings") and in effect as of January
1 in such Operation Year pursuant to an agreement between the Realty
Advisory Board on Labor Relations, Incorporated (or any successor thereto)
and Local 32B of the Building Service Employees International Union, AFL-
CIO (or any successor thereto) covering the wage rates of porters in Class
A Office Buildings, and
(2) as to female cleaners, the minimum hourly wage rate
prescribed to be paid to or on behalf of female cleaners in Class A Office
Buildings and in effect as of January 1 in such Operation Year pursuant to
an agreement between said Board (or any successor thereto and Local 32J of
said Union (or any successor thereto) covering the wage rates of female
cleaners in Class A Office Buildings;
which said minimum hourly wage rates shall be computed on the basis of the total
weekly amount required to be paid to or on behalf of said porters and female
cleaners in the Building for regular work weeks of forty (40) hours with respect
to porters and thirty (30) hours with respect to female cleaners inclu-
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sive of any overtime or premium pay work in such regular work weeks), whether
based on an hourly or other pay scale but predicated on the number of hours in
such respective work weeks. Such total weekly amounts shall be inclusive of all
payments or benefits of every nature and kind (including those required to be
paid by the employer directly to the taxing authorities or others on account of
the employment) such as, without limiting the generality of the foregoing,
social security, unemployment and all other similar taxes, holiday and vacation
pay, incentive pay, accident, health and welfare insurance programs, pension
plans, guarantee pay plans and supplemental unemployment benefit programs, and
fringe benefits, payments, plans or programs of a similar or dissimilar nature,
irrespective of whether they may be required or provided for in any applicable
law or regulation or otherwise. If there is no such agreement in effect as of
any such January 1 by which the Hourly Wage Rate for porters or for female
cleaners is determinable, computations and payments shall thereupon be made upon
the basis of the Hourly Wage Rate being paid by Landlord or by the contractor
performing the cleaning services for Landlord on such January 1 for said porters
or female cleaners as the case may be, and appropriate retroactive adjustment
shall thereafter be made when the Hourly Wage Rate paid on January 1 pursuant to
such agreement for porters or for female cleaners is finally determined, and
provided further that if, as of the last day of such Operation Year, no such
agreement covering the January 1 occurring in such Operation Year shall have
been in effect, the Hourly Wage rate paid by Landlord or by the contractor
performing the cleaning services for Landlord on such January 1 for said porters
or female cleaners, as the case may be, shall be for all purposes hereof deemed
to be such Hourly Wage Rate prescribed by such an agreement and in effect as of
such January 1. As used herein, the term "porters" shall mean that
classification of employee engaged in the general maintenance and operation of
office buildings most nearly comparable to that classification now applicable to
porters in the current agreement with said Local 32B
(which classification is presently termed "others" in said agreement).
(h) "Base Labor Rate" shall mean the Labor
Rate for the Operation Year ending December 31, 1979.
(i) "Labor Rate" for any Operation Year shall mean one-half (1/2)
of the sum of (1) the Hourly Wage Rate for porters, and (2) the Hourly Wage Rate
for female cleaners.
(j) "Escalation Statement" shall mean a state-
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merit in writing signed by Landlord, setting forth the amount payable by Tenant
for a specified Tax Year or Operation Year (as the case may be) pursuant to this
Article 26.
SECTION 26.02. If the Real Estate Taxes for any Tax Year shall be
greater than the Real Estate Tax Base, Tenant shall pay to Landlord as
additional rent for the premises for such Tax Year an amount equal to Tenant's
Proportionate Share of the amount by which the Real Estate Taxes for such Tax
Year are greater than the Real Estate Tax Base.
SECTION 26.03. If the Labor Rate for any Operation Year shall be
greater than the Base Labor Rate, Tenant shall pay to Landlord as additional
rent for the premises for such Operation Year an amount equal to the product
obtained by multiplying the Area of the Premises by the number of cents
(including any fraction of a cent) by which the Labor Rate for such Operation
Year is greater than the Base Labor Rate.
Section 26.04. Any such adjustment payable by reason of the provisions
of Sections 26.02 and 26.03 hereof shall commence as of the first day of the
relevant Tax Year or Operation Year (as the case may be) and, after Landlord
shall furnish Tenant with an Escalation Statement relating to such Tax Year or
Operation Year, all monthly installments of rental shall reflect one-twelfth of
the annual amount of such adjustment until a new adjustment becomes effective
pursuant to the provisions of this Article 26, provided, however, that if said
Escalation Statement is furnished to Tenant after the commencement of such Tax
Year or Operation Year, there shall be promptly paid by Tenant to Landlord, an
amount equal to the portion of such adjustment allocable to the part of such Tax
Year or Operation Year which shall have elapsed prior to the first day of the
calendar month next succeeding the calendar month in which said Escalation
Statement is furnished to Tenant.
SECTION 26.05. In the event (i) that the term commencement date shall
occur during a Tax Year or an Operation Year, (ii) that the date of the
expiration or other termination of this Lease shall be a day other than the last
day of a Tax Year or an Operation Year, (iii) of any abatement of the fixed rent
payable hereunder pursuant to any provision of this Lease (other than the
provisions of Article 12 hereof) or (iv) of any increase or decrease (as herein
provided in the Area of the Premises or in the rentable square foot area of the
Building) then in each such event in applying the provisions of this Article 26
with respect to any Tax Year or Operation Year
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in which such event shall have occurred, appropriate adjustments shall be made
to reflect the occurrence of such event on a basis consistent with the
principles underlying the provisions of this Article 26, taking into
consideration (x) the portion of such Tax or Operation Year which shall have
elapsed prior to the term commencement date, the date of such expiration or
other termination, or the date of such increase or decrease, or (y) the period
of such rent abatement or such increase or decrease, as the case may be, and (z)
in the case of such rent abatement or such increase or decrease, the portion of
the premises to which the same relates.
SECTION 26.06. Payments shall be made pursuant to this Article 26
notwithstanding the fact that an Escalation Statement is furnished to Tenant
after the expiration of the term of this Lease.
SECTION 26.07. In case the Real Estate Taxes for any Tax Year or part
thereof shall be reduced after Tenant shall have paid Tenant's Proportionate
Share of any increase thereof in respect of such Tax Year pursuant to Section
26.04 hereof, Landlord shall credit or refund to Tenant, Tenant's Proportionate
Share of the refund of such taxes received by Landlord (after deduction of
expenses, including counsel fees, incurred by Landlord in connection with
reducing the assessed valuation and/or in obtaining such refund of taxes). If,
after an Escalation Statement has been sent to Tenant, the assessed valuation
which had been utilized in determining the Real Estate Base Tax is reduced (as a
result of settlement, final determination of legal proceedings or otherwise)
then, and in such event (a) the Real Estate Tax Base shall be retroactively
adjusted to reflect such reduction, (b) the monthly installment of fixed rent
shall be increased accordingly and (c) all retroactive additional rent resulting
from such retroactive adjustment shall be forthwith payable when billed by
Landlord. Landlord shall send to Tenant a statement setting forth the basis for
such retroactive adjustment and additional rent payments.
SECTION 26.08. In no event shall the fixed rent under this Lease
(exclusive of the additional rent under this Article) be reduced by virtue of
this Article.
ARTICLE 27
SUBORDINATION
SECTION 27.01. This Lease is subject and subordi-
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nate in all respects to all ground leases and/or underlying leases now or
hereafter covering the real property of which the premises form a part and to
all mortgages and trust indentures which may now or hereafter be placed on or
affect such leases and/or the real property of which the premises form a part,
or any part or parts of such real property, and/or Landlord's interest therein,
and to each advance made and/or hereafter to be made under any such mortgages,
or indentures and to all renewals, modifications, consolidations, replacements
and extensions thereof and all substitutions of and for such ground leases
and/or underlying leases and/or mortgages or indentures. This Section 27.01
shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall execute and
deliver promptly any certificate that Landlord and/or any mortgagee and/or the
lessor under any ground or underlying lease and/or their respective successors
in interest may request. Tenant hereby constitutes and appoints Landlord and/or
any mortgagee and/or the lessor under any ground or underlying lease and/or
their respective successors in interest Tenant's attorney-in-fact to execute and
deliver any such certificate or certificates for and on behalf of Tenant. Tenant
agrees that, in the event any proceedings are brought for the foreclosure of any
mortgage or indenture referred to herein, to attorn to the purchaser upon any
such foreclosure sale and to recognize such purchaser as the landlord under this
Lease. In the event of the enforcement by any mortgagee of the Building of
remedies provided for by law or by such mortgage, any person succeeding to the
interest of the Landlord as the result of such enforcement shall not be bound by
any payment of rent or additional rent for more than one month in advance.
Landlord agrees that promptly following the date hereof to use its best efforts
(but without cost and expense to Landlord) to obtain an appropriate non-
disturbance and attornment agreement from the lessor of the underlying lease and
a non-disturbance agreement from the holder of the mortgage covering such lease.
ARTICLE 28
MISCELLANEOUS
SECTION 28.01. Notwithstanding anything contained in this Lease
to the contrary, Tenant covenants and agrees that Tenant will not use the
premises or any part thereof, or permit the premises or any part thereof to be
used,
(i) for a banking, trust company, or safe deposit business,
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(ii) as a savings bank, or as a savings and loan association, or
as a loan company,
(iii) for the sale of travelers checks and/or foreign exchange,
(iv) as a stock brokerage office or for stock brokerage purposes
or for the underwriting of securities,
(v) as a news and cigar stand, as such, or
(vi) as a restaurant and/or bar and/or for the sale of
confectionery and/or soda and/or beverages and/or sandwiches and/or ice
cream and/or baked goods or for the preparation, dispensing or consumption
of food or beverages in any manner whatsoever.
SECTION 28.02. Tenant hereby represents, covenants and agrees that
Tenant's business is not photographic reproductions and/or documentary
reproductions and/or offset printing. Notwithstanding anything contained in this
Lease to the contrary, Tenant covenants and agrees that Tenant will not use the
premises or any part thereof, or permit the premises or any part thereof to be
used, for the business of photographic reproductions and/or documentary
reproductions and/or offset printing. Nothing contained in this Section 28.02
shall preclude Tenant from using any part of the premises for photographic
reproductions and/or documentary reproductions and/or offset printing in
connection with, either directly or indirectly, its own business and/or
activities.
SECTION 28.03. If, in connection with obtaining financing for the
Building, a banking, insurance or other recognized institutional lender shall
request reasonable modifications in this Lease as a condition to such financing,
Tenant will not unreasonably withhold, delay or defer its consent thereto,
provided that such modifications do not increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created.
SECTION 28.04. If, at any time during the last month of the term of
this Lease, Tenant shall have removed all or substantially all of Tenant's
property from the premises, Landlord may, and Tenant hereby irrevocably grants
to Landlord a license to, immediately enter and alter, renovate and redecorate
the premises, without limitation, diminution or abatement of rent, or incurring
liability to Tenant for any compensa-
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tion, and such acts shall have no effect upon this Lease.
SECTION 28.05. Tenant shall not place a load upon any floor of the
premises exceeding the floor load per square foot which such floor was designed
to carry and which must be placed by Tenant, at Tenant's expense, so as to
distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant, at Tenant's expense, in settings sufficient in
Landlord's judgment to absorb and prevent vibration, noise and annoyance. If the
premises be or become infested with vermin as a result of the use or any misuse
or neglect of the premises by Tenant, its agents, employees, visitors or
licensees, Tenant shall at Tenant's expense cause the same to be exterminated
from time to time to the satisfaction of Landlord and shall employ such
exterminators and such exterminating company or companies as shall be approved
by Landlord.
SECTION 28.06. If Landlord shall consent to the omission or removal
of any part of, or the insertion of any door or other opening in, any wall
separating the premises from adjoining space leased to another tenant, then (i)
Tenant shall be responsible for all risk of damage to, or loss or theft of,
property arising as an incident to such omission or removal or the use of such
door or other opening, or because of the existence thereof, and shall indemnify
and save Landlord harmless from and against any claim, demand or action for, or
on account of, any such loss, theft or damage, and (ii) in the event of the
termination of this Lease or the lease of said other tenant, Landlord may enter
the premises and Landlord, at Tenant's expense, may close up any door or other
opening by erecting a wall to match the wall separating the premises from said
adjoining space, and Tenant shall not be entitled to any diminution or abatement
of rent or other compensation by reason thereof; provided, however, that nothing
herein contained shall be deemed to vest Tenant with any right or interest in,
or with respect to, said adjoining space, or the use thereof, and Tenant hereby
expressly waives any right to be made a party to, or to be served with process
or other notice under or in connection with, any proceeding or action which may
hereafter be instituted by Landlord for the recovery of the possession of said
adjoining space.
SECTION 28.07. Without incurring any liability to Tenant, Landlord may
permit access to the premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
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purporting to be entitled to, such access for the purpose of taking possession
of, or removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Landlord hereunder shall not be deemed a recognition
by Landlord that the person or official making such demand has any right or
interest in or to this Lease, or in or to the premises), or upon demand of any
representative of the fire, police, building, sanitation or other department of
the city, state or federal governments.
SECTION 28.08. Tenant shall not be entitled to exercise any right of
termination or other option granted to it by this Lease at any time when Tenant
is in default in the performance or observance of any of the covenants,
agreements, terms, provisions or conditions on its part to be performed or
observed under this Lease.
SECTION 28.09. Tenant shall not place or permit to be placed any
vending machines in the premises, except for Tenant's employees and except
otherwise with the prior written consent of Landlord in each instance.
SECTION 28.10. Tenant will not clean, nor require, permit, suffer or
allow any window in the premises to be cleaned, in violation of Section 202 of
the Labor Law of the rules of the Board of Standards and Appeals, or of any
other board or body having or asserting jurisdiction.
SECTION 28.11. Tenant represents that it has not dealt with any
person other than Helmsley-Spear Incorporated in connection with this
transaction and agrees to indemnify and hold Landlord harmless from any damage
suffered by Landlord through any breach of this representation.
SECTION 28.12. The term "Landlord" as used in this Lease means only
the owner, or the mortgagee in possession, for the time being of the Land and
Building (or the owner of a lease of the Building or the Land and Building), so
that in the event of any sale or sales of the Land and Building or of said
lease, or in the event of a lease of the Building, or of the Land and Building,
the Landlord shall be and hereby is entirely freed and relieved of all covenants
and obligations of Landlord hereunder, and it shall be deemed and construed
without further agreement between the parties or their successors in interest,
or between the parties and the purchaser, at any such sale, or the said lessee
of the Building, or of the Land and Building, that the purchaser or the lessee
of the Building has assumed and agreed to carry out any and all covenants and
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obligations of Landlord hereunder. No general or limited partner or shareholder
of Landlord (including any assignee or successor of Landlord) or other holder of
any equity interest in Landlord shall be personally liable for the performance
of Landlord's obligations under this Lease. The liability of Landlord (including
any assignee or successor of Landlord) for Landlord's obligations under this
Lease shall be limited to Landlord's interest in the land and Building and
Tenant shall not look to any of Landlord's other assets in seeking either to
enforce Landlord's obligations under this Lease or to satisfy a judgment for
Landlord's failure to perform such obligations.
SECTION 28.13. The submission by Landlord of the Lease in draft form
shall be deemed submitted solely for Tenant's consideration and not for
acceptance and execution. Such submission shall have no binding force or effect
and shall confer no rights nor impose any obligations, including brokerage
obligations, on either party unless and until both Landlord and Tenant shall
have executed the Lease and duplicate originals thereof shall have been
delivered to the respective parties.
ARTICLE 29
LAYOUT AND FINISH
SECTION 29.01. Tenant shall at Tenant's expense, and as part of
Tenant's Changes, perform all of the work in the premises necessary for Tenant's
occupancy thereof (including full sprinklerization of the premises), subject to
the provisions of this Lease. Upon execution and delivery of this Lease,
Landlord shall make the premises available to Tenant for the performance of such
work to be done by Tenant. Tenant agrees with respect to its activities and work
during such period that it will conform to all of Landlord's labor regulations
and shall not do or permit anything to be done that might create any work
stoppage, picketing or other labor disruption or dispute. Tenant agrees that it
will, prior to the commencement of any work in the premises, deliver to Landlord
all policies of insurance required to be supplied to Landlord by Tenant pursuant
to the terms of this Lease.
SECTION 29.02. In consideration of Tenant performing all of the work
necessary for its occupancy of the premises, Landlord agrees that if Tenant,
within a period of twelve (12) months from the term commencement date, shall
have submitted to Landlord (a) a detailed itemization of the lease-
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hold improvements (including, without limitation, full sprinklerization of the
premises) installed by Tenant in the premises, (b) together with receipted paid
bills therefor from a general contractor approved by Landlord and (c) an opinion
of counsel or other evidence reasonably satisfactory to Landlord to the effect
that there has not been filed with respect to the Building and/or premises or
any part thereof or upon Tenant's leasehold interest therein any vendor's,
mechanic's, laborer's, materialman's or other lien which has not been dis-
charged of record, Landlord shall reimburse or cause to be reimbursed to Tenant
an amount equal to the lesser of (i) the actual cost of the leasehold
improvements made by Tenant in the premises and (ii) Three Hundred Eighty
Thousand Six Hundred Forty ($380,640.00) DOLLARS, representing Landlord's
contribution to such work, it being understood and agreed that Landlord's
contribution shall not exceed the sum of Three Hundred Eighty Thousand Six
Hundred Forty ($380,640.00) DOLLARS, and that all costs and expenses in excess
of said sum shall be borne solely by Tenant. For purposes of this Section 29.02
and Landlord's obligation to reimburse Tenant, as aforesaid, for the leasehold
improvements made by Tenant in the premises, leasehold improvements shall not be
deemed to include any items of decoration (other than painting and wall covering
and where tile or vinyl is not installed, floor covering) furniture, furnishings
(other than work stations), millwork, or architect or designer fees. Further,
Tenant agrees that Landlord may perform Tenant's obligation to install a
sprinkler system in the premises, and Landlord may credit against Landlord's
contribution Tenant's pro rata share, seventy-three (73%) percent, of the cost
incurred by Landlord to install a sprinkler system throughout the thirty third
(33rd) floor of the Building, including, but not by way of limitation, all
risers, pipe run-outs, sprinkler heads, supplementary pumps, if required, and
all valve connections. Landlord agrees, subject to unavoidable delays, to
install said sprinkler system within thirty (30) days after submission by Tenant
to Landlord of Tenant's final working drawings for the premises. On Tenant's
request, Landlord shall submit to Tenant copies of receipted bills for such
work.
SECTION 29.03. Upon Tenant's request, Landlord's contribution as
provided in Section 29.02 shall be paid out from time to time (in
contradistinction to completion and receipt by Landlord of paid bills) as
Tenant's work progresses, which request by Tenant shall be accompanied by the
following:
(a) a certificate signed by Tenant, dated not more than ten (10)
days prior to such request, setting forth
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the following:
(i) that the sum then requested is justly due to persons
who have rendered services or furnished materials for the work therein
specified, and giving a brief description of such services and materials
and the several amounts due to each of said persons in respect thereof, and
stating that no part of such expenditure is being made the basis, in any
previous or then pending prior request, for the receipt of Landlord's
contribution or has been made out of the proceeds of Landlord's
contribution received by Tenant, and that the sum then requested does not
exceed the value of the services and materials described in the
certificate;
(ii) that except for the amount, if any, stated pursuant to
the foregoing subdivision (a)(i) in such certificate to be due for services
or materials, there is no outstanding indebtedness (except for withholding
of ten (10%) percent of such amount) known to the persons signing such
certificate, which is then due for labor, wages, materials, supplies or
services in connection with such work which, if unpaid, might immediately
become the basis of a vendor's, mechanic's, laborer's or materialman's
statutory or similar lien upon such work or upon the Land or Building or
any part thereof or upon Tenant's leasehold interest.
(b) an opinion of counsel or other evidence, reasonably
satisfactory to Landlord to the effect that there has not been filed with
respect to the Land and Building or any part thereof any lien which has not been
discharged of record.
Subject to the provisions of Section 29.02 hereof, upon compliance
with the foregoing provisions of this Section 29.03, Landlord shall pay or cause
to be paid to Tenant or the persons named (pursuant to subdivision (a)(i) of
this Section) in such certificate, the respective amounts stated therein to be
due to them; provided, however, that Landlord's total contribution shall not
exceed the sum of Three Hundred Eighty Thousand Six Hundred Forty ($380,640.00)
DOLLARS, and all costs and expenses in excess of said sum shall be borne solely
by Tenant.
SECTION 29.04. Landlord shall, at its expense, construct and decorate
the public corridors and construct demising walls adjacent to the premises
immediately following submission by Tenant to Landlord of
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approved final working drawings.
ARTICLE 30
INSURANCE
SECTION 30.01. Tenant covenants to provide prior to entry upon the
premises and to keep in force and effect during the demised term: (1)
comprehensive general liability insurance relating to the premises and its
appurtenances on an occurrence basis against claims for bodily injury or death
on account of accident upon the premises with minimum limits of liability in
amount of TWO MILLION and 00/100 ($2,000,000.00) DOLLARS per occurrence; and (2)
Workmen's Compensation Insurance to cover all persons engaged in Tenant's
Changes. Tenant agrees to deliver to Landlord, at least fifteen (15) days prior
to the time such insurance is first required to be carried by Tenant, and
thereafter at least fifteen (15) days prior to the expiration of any such
policy, either a duplicate original or a certificate and true copy of all
policies procured by Tenant in compliance with its obligations hereunder,
together with evidence of payment therefor and including an endorsement which
states that such insurance may not be cancelled except upon ten (10) days'
written notice to Landlord and any designee(s) of Landlord. Workmen's
Compensation Insurance provided for in this Section may be procured by Tenant's
contractors.
SECTION 30.02. All of the aforesaid insurance shall be issued in the
name of Landlord (and any designee(s) of Landlord) and Tenant shall be written
by one (1) or more responsible insurance companies licensed to do business in
New York State; all such insurance may be carried under a blanket policy
covering the premises and any other of Tenant's locations and shall contain
endorsements that: (1) Such insurance may not be cancelled or amended with
respect to Landlord (or its designee(s)) except upon ten (10) days written
notice by registered mail to Landlord (and such designee(s)) by the insurance
company; and (2) Tenant shall be solely responsible for payment of premiums and
that Landlord (or its designee(s)) shall not be required to pay any premiums for
such insurance. The minimum limits of the comprehensive general liability policy
of insurance shall in no way limit or diminish Tenant's liability under Section
5.01(j) hereof.
SECTION 30.03. The minimum limits of the comprehensive general
liability policy of insurance shall be subject to increase at any time, and from
time to time, after the commencement of the fifth (5th) year of the term hereof
if Land-
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lord in the exercise of its reasonable judgment shall deem the same necessary
for adequate protection. Within thirty (30) days after demand therefor by
Landlord, Tenant shall furnish Landlord with evidence that such demand has been
complied with. In case Tenant disputes the reasonableness of Landlord's demand,
the parties agree to submit the question of the reasonableness of such demand
for decision to the Chairman of the Board of Directors of the Management
Division of The Real Estate Board of New York, Inc., or to such impartial person
or persons as he may designate whose determination shall be final and conclusive
upon the parties hereto. The right to dispute the reasonableness of any such
demand by Landlord shall be deemed waived unless the same shall be asserted by
Tenant by service of a notice in writing upon Landlord within ten (!0) days
after the giving of Landlord's demand therefor.
ARTICLE 31
SECURITY DEPOSIT
31.01. Simultaneously with the execution and delivery of this lease by
Tenant, Tenant has deposited with Landlord the sum of Sixty-Two Thousand One
Hundred Eighteen and 33/100 ($62,118.33) Dollars, as security for the full and
faithful performance by Tenant of each and every term, covenant, condition and
agreement of this Lease or any renewals or extensions thereof on Tenant's part
to be performed; it being expressly understood and agreed that Tenant shall
pay rent for the last calendar month of the term hereof or of any renewals or
extensions thereof promptly on the first day of such month. If Tenant shall fail
to perform or observe, or shall breach or violate, any of the terms, covenants,
conditions or agreements of this Lease, including but not limited to the
payment of fixed rent or additional rent or any other charges, Landlord may use,
apply or retain the whole or any part of such deposit to the extent required for
the payment of any such fixed rent or additional rent or any other sum as to
which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's non-performance, non-observance, breach
or violation of any of the terms, covenants, conditions or agreements of this
Lease, including but not limited to, any damages or deficiency in the re-letting
of the premises, whether such damages or deficiency accrue before or after
summary proceedings or other re-entry by Landlord.
31.02. Landlord shall not be required so to use, apply or retain the whole
or any part of said deposit, but if
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the whole or any part thereof is so used, applied or retained, Tenant shall upon
demand immediately deposit with Landlord a sum equal to the amount so used,
applied or retained. If Tenant shall fully and faithfully comply with all of the
terms, covenants, conditions and agreements of this Lease, the deposit or any
balance thereof remaining shall be returned to Tenant after the date fixed as
the end of this Lease or of any renewal or extension thereof and after delivery
of entire possession of the premises to Landlord. Landlord shall not be required
to pay Tenant any interest on said security deposit.
31.03. In the event of a sale, transfer or lease of the parcel of Land or a
sale, transfer or lease of Land and/or Building or a sale or transfer of any
such lease, Landlord may transfer or assign the security so deposited or any
balance thereof remaining the vendee, transferee or lessee, as the case may be,
and Landlord shall thereupon be released from all liability for the return of
such security, and Tenant, in each such instance, shall look solely to such
vendee, transferee or lessee, as the case may be, for the return of such
security. It is further agreed that the provisions hereof shall apply to every
such sale, transfer or lease and to every such transfer or assignment made of
such security.
31.04. Tenant shall not assign or encumber or attempt to assign or encumber
any security deposited hereunder and neither Landlord not its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
31.05. Tenant may deposit with Landlord, in lieu of cash security referred
to in Section 31.01 of this Article, an irrevocable and unconditional bank
Letter of Credit, drawn on a bank satisfactory to Landlord, in the amount of
2,118.33, designating Landlord as the sole payee thereunder. Such Letter of
Credit shall provide for the unilateral application thereof by Landlord in the
event Tenant is in default in the observance or performance of any term,
covenant or condition of the Lease to be observed or performed by Tenant, and
shall otherwise be in form satisfactory to Landlord. Tenant covenants and agrees
that not less than sixty (60) days prior to the expiration of any such Letter of
Credit, Tenant shall furnish to Landlord a new Letter of Credit meeting each of
the requirements of this Section. Tenant's failure to comply with the provisions
of the immediately preceding sentence shall constitute a default under the
provisions of Section 12.01 of Article 12 of this Lease, permitting Landlord to
give to Tenant the notice of intention to end the term of this Lease, as pro-
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vided in said Section 12.01.
ARTICLE 32
QUIET ENJOYMENT
32.01 Landlord covenants that if and so long as, Tenant keeps and performs
each and every covenant, agreement, term, provision and condition herein
contained on the part and on behalf of Tenant to be kept and performed, Tenant
shall quietly enjoy the premises without hindrance or molestation by Landlord or
by any other person lawfully claiming the same, subject to the covenants,
agreements, terms, provisions and conditions of this Lease and to the ground
leases and/or underlying leases and/or mortgages to which this Lease is subject
and subordinate, as hereinbefore set forth.
IN WITNESS WHEREOF Landlord and Tenant have duly executed this Lease as of the
day and year first above written.
PDC REALTY INC., As Agent For
MRI BROADWAY RENTAL, INC.
ATTEST:
/s/Logan T. Dugaw By /s/John B. Farren
-------------------------- ----------------------------------
John B. Farren, President (I-
TELEPHONE MARKETING PROGRAMS INC.
ATTEST:
/s/ Thomas G. Collison By /s/Andrew J. McKelvey
-------------------------- ----------------------------------
(TENANT)
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LANDLORD
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
On this 7th day of November, 1978, before me personally came JOHN B.
FARREN, to me known, who being by me duly sworn, did depose and say that he
resides at 1001 East Touhy Avenue, Des Plaines, Illinois; that he is President
of PDC REALTY INC., the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
/s/ Janet M. (illegible)
-------------------------------
Notary Public
My Commission Expires (illegible)
TENANT
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 30th day of October, 1978, before me personally came Andrew J.
McKelvey, to me known, who being by me duly sworn, did depose and say that he
resides at 300 East 40 St., New York, New York that he is President of TELEPHONE
MARKETING PROGRAMS INC., the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
/s/ Muriel T. Ruttgeizer
------------------------------
Notary Public
MURIEL T. RUTTGEIZER
Notary Public State of New York
No. 24-4625170
Qualified in Kings County
Commission Expires March 30, 1979
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RULES AND REGULATIONS
1. The sidewalks, driveways, entrances, passages, courts, lobbies,
esplanade areas, plazas, elevators, vestibules, stairways, corridors or halls
shall not be obstructed or encumbered by any tenant or used for any purpose
other than ingress and egress to and from the premises and Tenant shall not
permit any of its employees, agents or invitees to congregate in any of said
areas. No doormat of any kind whatsoever shall be placed or left in any public
hall or outside any entry door of the premises.
2. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung, in, or used in connection with any window or door of the premises, without
the prior written consent of Landlord. Such curtains, blinds, shades or screens
must be of a quality, type, design and color, and attached in the manner,
approved by Landlord.
3. No sign, insignia, advertisement, lettering, notice or other object
shall be exhibited, inscribed, painted or affixed by any tenant on any part of
the outside or inside of the premises or the Building without the prior written
consent of Landlord. In the event of the violation of the foregoing by any
tenant, Landlord may remove the same without any liability, and may charge the
expense incurred in such removal to the tenant or tenants violating this rule.
Interior signs, and lettering on doors and the Building directory shall, if and
when approved by Landlord, be inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels, or other articles be placed on the window sills or on the
peripheral air conditioning enclosures.
5. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed,
and no sweepings,
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rubbish, rags, acids or other substances shall be thrown or deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by the
tenant who, or whose servants, employees, agents, visitors or licensees shall
have, caused the same. Any cuspidors or containers or receptacles used as such
in the premises, or for garbage or similar refuse, shall be emptied, cared for
and cleaned by and at the expense of Tenant.
7. No tenant shall mark, paint, drill into, or in any way deface, any
part of the premises or the Building. No boring, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord, and as
Landlord may direct.
8. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises.
9. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television which, in the judgment of
Landlord, might disturb other tenants of the Building, shall be made or
permitted by any tenant. Nothing shall be done or permitted in the premises by
any tenant which would impair or interfere with the use or enjoyment by any
other tenant of any other space in the Building.
10. No tenant, nor any tenant's servants, employees, agents, visitors
or licensees, shall at any time bring or keep upon the premises any inflammable,
combustible or explosive fluid, chemical or substance.
11. Additional locks or bolts of any kind which shall not be operable
by the Grand Master Key for the Building shall not be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said Grand Master
Key. Each tenant shall, upon the termination of its tenancy, turn over to
Landlord all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys
furnished by Landlord, such tenant shall pay to Landlord the cost thereof.
12. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description must take place dur-
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ing such hours and in such elevators as Landlord or its agent may determine from
time to time. Landlord reserves the right to inspect all objects and matter to
be brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part. Landlord may require any person leaving
the Building with any package or other object or matter to submit a pass,
listing such package or object or matter, from the tenant from whose premises
the package or object or matter is being removed, but the establishment and
enforcement of such requirement shall not impose any responsibility on Landlord
for the protection of any tenant against the removal of property from the
premises of such tenant. Landlord shall in no way be liable to any tenant for
damages or loss arising from the admission, exclusion or ejection of any person
to or from the premises or the Building under the provisions of this Rule 12 or
of Rule 16 hereof.
13. Tenant shall not occupy or permit any portion of the premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a barber, beauty or manicure shop, or as a school, or as a
hiring or employment agency. Tenant shall not engage or pay any employee on the
premises, except those actually working for tenant on the premises nor advertise
for laborers giving an address at the premises. Tenant shall not use the
premises or any part thereof, or permit the premises or any part thereof to be
used for manufacturing, or for the sale at retail or auction of merchandise,
goods or property of any kind.
14. No tenant shall obtain, purchase or accept for use in the premises
ice, drinking water, food, coffee cart, beverage, towel, barbering,
bootblacking, cleaning, floor polishing or other similar services from any
persons not authorized by Landlord in writing to furnish such services. Such
services shall be furnished only at such hours, in such places within the
premises, and under such regulations, as may be fixed by Landlord.
15. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's judgment, tends to impair
the reputation of the Building or its desirability as a building for offices,
and upon written notice from Landlord, such tenant shall refrain from and
discontinue such advertising or identifying sign.
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16. Landlord reserves the right to exclude from the Building during
hours other than Business Hours (as defined in the foregoing Lease) all persons
connected with or calling upon tenant who do not present a pass to the Building
signed by tenant. Tenant shall furnish Landlord with a facsimile of such pass.
All persons entering and/or leaving the Building during hours other than
Business Hours may be required to sign a register. Tenant shall be responsible
for all persons for whom it issues any such pass and shall be liable to Landlord
for all acts or omissions of such persons.
17. Tenant, before closing and leaving the premises at any time, shall
see that all operable windows are closed and all lights are turned out. All
entrance doors in the premises shall be left locked by tenant when the premises
are not in use. Entrance doors shall not be left open at any time.
18. Unless Landlord shall furnish electric energy hereunder as a
service included in the rent, tenant shall, at tenant's expense, provide
artificial light and electric energy for the employees of Landlord and/or
Landlord's contractors while doing janitor service or other cleaning in the
premises and while making repairs or alterations in the premises.
19. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
20. The requirements of tenants will be attended to only upon
application at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
21. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
22. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by any others, in the moving or delivery or
receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material, or any other matter or thing, any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord shall
require.
23. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable
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odors to emanate from the premises which would annoy other tenants or create a
public or private nuisance. No cooking shall be done in the premises except as
is expressly permitted in the foregoing Lease.
24. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary or desirable for the reputation, safety, care or appearance
of the Building, or the preservation of good order therein, or the operation or
maintenance of the Building, or the equipment thereof, or the comfort of tenants
or others in the Building. No rescission, alteration or waiver of any rule or
regulation in favor of one tenant shall operate as a rescission, alteration or
waiver in favor of any other tenant.
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[FLOORPLAN]
<PAGE>
CLEANING SPECIFICATIONS
GENERAL
All stone, ceramic, tile, marble, terrazzo and other unwaxed or untreated
flooring to be swept nightly, using approved dust-down preparation; wash such
flooring once a month.
All linoleum, rubber, asphalt tile and other similar types of flooring (that may
be waxed or treated) to be swept nightly, using approved dust-down preparation.
Waxing and interim buffing shall be done at Tenant's expense.
All carpeting and rugs to be carpet swept nightly and vacuum cleaned at least
once each week.
Hand dust and wipe clean all furniture, fixtures, window sills and convector
closure tops nightly; wash sills and tops when necessary.
Empty, clean and damp dust as necessary all waste receptacles nightly and remove
from the demised premises waste paper and waste materials.
Empty and clean all ash trays and screen all sand urns nightly.
Dust all door and other ventilating louvres within reach, as necessary.
Dust all telephones as necessary.
Remove finger marks and scuff marks from partition walls and door surfaces.
Sweep all private stairway structures nightly.
Wipe clean all metal hardware and metal fixtures and other bright work nightly.
Wipe clean all metal elevator shaftway doors and frames.
Wipe all interior metal window frames, mullions, terrace doors and other
unpainted interior metal surfaces of the perimeter walls of the building each
time the interior of the windows are washed. Such surfaces to be cleaned once
each year with appropriate cleaner.
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Vacuum clean peripheral induction air conditioning units semiannually.
Render pest control services once each month and emergency calls on request.
Normal floor cleaning only shall be performed in Tenants' computer equipment
areas, food preparation and dining areas.
LAVATORIES
Sweep and wash all lavatory floors nightly, using disinfectants. Wash and polish
all mirrors, powder shelves, bright work and enameled surfaces in all
laboratories, nightly.
Scour, wash, and disinfect all basins, bowls and urinals nightly.
Wash both sides of all toilet seats nightly.
Hand dust and clean, washing where necessary, all partitions, tile walls,
dispensers and receptacles in all lavatories and restrooms nightly.
Fill toilet tissue holders nightly (tissue to be furnished by Landlord).
Empty sanitary disposal receptacles nightly.
Wash interior of waste cans and receptacles at least once a week.
Wash and polish wall tile and stall surfaces as often as necessary but in no
event less than once every two weeks.
If directed by Tenant, fill soap dispensers and paper towel dispensers, (soap
and paper towels to be furnished by Tenant).
Empty paper towel receptacles and transport wastepaper from the demised
premises, nightly.
HIGH DUSTING
Do high dusting quarterly, which includes the following:
Dust all pictures, frames, charts, graphs and similar wall hangings not reached
in nightly cleaning.
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Dust clean all vertical surfaces, such as walls, partitions, doors and bucks and
other surfaces not reached in nightly cleaning.
Dust clean all pipes, ventilating and air conditioning louvres, ducts, high
mouldings and other high areas not reached in nightly cleaning.
Dust all lighting fixtures, annually, including plastic and glass enclosures.
Dust all venetian blinds or wash as required.
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LEASE MODIFICATION AGREEMENT
----------------------------
LEASE MODIFICATION AGREEMENT, made as of the day of January, 1979,
between PARAMOUNT EQUITIES LTD., as Agent for MRI BROADWAY RENTAL, INC., a New
York corporation having an office at 1001 East Touhy Avenue, Des Plaines,
Illinois (the "Landlord"), and TELEPHONE MARKETING PROGRAMS INC., a New York
corporation having an office at 605 Third Avenue, New York, New York (the
"Tenant").
WITNESSETH:
WHEREAS:
A. The Landlord and the Tenant, as of October 31, 1978, entered
into a lease covering a portion of the 33rd floor (the "Original Space") in the
building (the "Building") known as 1633 Broadway, New York, New York, at the
rental and upon the other terms and conditions more particularly set forth
herein and a letter agreement of even date therewith relating to electrical
service (the lease and the letter agreement being hereinafter collectively
called the "Lease").
B. The Landlord and the Tenant desire to modify the Lease by
adding the remaining premises on the 33rd floor of the Building to the Original
Space at the premises leased under the Lease and by, among other things,
increasing the rental payable under the Lease, all on the terms, conditions and
provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, the Landlord and the Tenant hereby agree as
follows:
<PAGE>
2. Effective as of the date of this Agreement:
A. The premises located on the 33rd floor of the Building shown by
hatching on the plan annexed hereto (the "Additional Space") are hereby added to
the Original Space as premises leased under the Lease. The plan annexed hereto
shall be deemed to be annexed to and be part of the Lease with the same force
and effect as if physically attached thereto. The premises leased under the
Lease as modified by this Agreement shall consist of the Original Space and the
Additional Space.
B. Subject to adjustment as provided in the Lease, the annual
rental payable under the Lease is hereby increased by One Hundred Fifty Three
Thousand Sixty Three Dollars and Seventy Five Cents ($153,063.75) per year, from
Three Hundred Seventy Two Thousand Seven Hundred Ten Dollars ($372,710.00) per
year to Five Hundred Twenty Five Thousand Seven Hundred Seventy Three Dollars
and Seventy Five Cents ($525,773.75) per year.
C. The rentable area of the premises referred to in Section 1.06
of the Lease is hereby increased by 12,005 square feet, from 31,720 square feet
to 43,725 square feet.
D. The reference in Section 24.02 as the amount of annual fixed
rent set forth in Article 1 for electric energy on a rent inclusion basis is
hereby increased by $15,006.25, from $39,650.00 to $54,656.25.
E. The reference in subsection (d) of Section 26.01 of the Lease
to "Area of the Premises" is hereby increased by 12,005 square feet from 31,720
square feet to 43,725 square feet.
-2-
<PAGE>
F. The Landlord's total contribution to the Tenant's work in the
Original Space and the Additional Space, referred to in Sections 29.02 and 29.03
of the Lease, is hereby increased by One Hundred Forty Four Thousand Sixty
Dollars ($144,060.00), from Three Hundred Eighty Thousand Six Hundred and Forty
Dollars ($380,640.00) to Five Hundred Twenty Four Thousand Seven Hundred Dollars
($524,700.00).
G. The security deposit referred to in Sections 31.01 and 31.05 of
Article 31 of the Lease is hereby increased by $25,510.63, from $62,118.33 to
$87,628.96, and Landlord hereby acknowledges receipt of an irrevocable and
unconditional bank Letter of Credit in such increased amount.
H. The third sentence of Section 29.02 of the Lease is hereby amended
by deleting the following phrase therein:
"Tenant's pro rata share, seventy-three (73%) percent, of ..."
I. Section 29.04 of the Lease is hereby deleted.
J. The reference to $39,650.00 per annum in paragraph 1 of the
electrical service letter agreement referred to above is hereby increased by
$15,006.25 per annum to $54,656.25 per annum.
K. The Tenant shall use and occupy the Additional Space for
executive and general offices and for no other purposes.
2. Tenant hereby acknowledges that Tenant has caused an inspection to
be made of the Additional Space. Tenant shall accept the Additional Space "as
is" in its
-3-
<PAGE>
state and physical condition on the day on which Tenant takes possession of the
Additional Space, and Landlord shall not be required to make any repairs,
alterations or improvements (including, without limitation, improvements such
as painting, finishing, plastering or decorating) in or to the Additional Space.
3. The Tenant represents that it has not dealt with any person other
than Helmsley-Spear, Incorporated in connection with this modification of lease
and agrees to indemnify and hold the Landlord harmless for any damages suffered
by the Landlord for any breach of this representation.
4. Modifying section 25.10(g), tenant shall be permitted seven (7)
subtenants in lieu of four (4) subtenants as stated therein. In addition, the
provisions of section 25.14 are changed as follows: from one (1) year to two
(2) years, from two (2) subtenants to six (6) subtenants, from 6,000 square
feet to 18,000 square feet.
5. This Agreement may not be changed, modified, terminated or
discharged orally.
6. As modified by this Agreement, the Lease is hereby ratified and
confirmed and shall remain in full force and effect, and the provisions of the
Lease as so modified shall apply to the Additional Space.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date set forth at the outset of this Agreement.
PARAMOUNT EQUITIES LTD, as Agent for
MRI BROADWAY RENTAL, INC.
BY /s/ John B. Farren
-------------------------------------
TELEPHONE MARKETING PROGRAMS, INC.
BY /s/ Andrew J. McKelvey
-------------------------------------
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On this 5th day of February , 1979, before me personally came JOHN B.
FARREN, to me known, who being by me duly sworn, did depose and say that he
resides at 1001 East Touhy Avenue, Des Plaines, Illinois; that he is President
of Paramount Equities Ltd., the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation: that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation, and that he signed his name
thereto by like order.
/s/ Carol Hinnitty
----------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1979, before me personally came
ANDREW J. McKELVEY, to me known, who being by me duly sworn, did depose and say
that he resides at 425 East 58th Street, New York, New York; that he is
President of TELEPHONE MARKETING PROGRAMS INC. the corporation described in and
which executed the foregoing instrument; that he knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation,
and that he signed his name thereto by like order.
/s/ Patricia Dennigan
----------------------
Notary Public
<PAGE>
[MAP OMITTED]
<PAGE>
DRAFT
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SECOND LEASE MODIFICATION AGREEMENT
------------------------------------
This SECOND LEASE MODIFICATION AGREEMENT is made as of the 20th day of June,
1991, between PARAMOUNT GROUP,INC. as agent for MRI BROADWAY RENTAL, INC., a New
York corporation, having an office at Paramount Plaza, 1633 Broadway, New York,
New York 10019 ("Landlord") and TELEPHONE MARKETING PROGRAMS INC., a New York
corporation having an office at 1633 Broadway, New York, New York 10019
("Tenant").
WITNESSETH:
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WHEREAS, Landlord and Tenant entered into that certain lease dated as of
October 31, 1978 (the "Original Lease"), as amended by agreement dated as of
October 31, 1978 (the "Letter Agreement") and a Lease Modification Agreement
dated as February 5, 1979 (the "First Modification") (the Original Lease, the
Letter Agreement and the First Modification are hereinafter collectively
referred to as the "Lease"); and
WHEREAS, Landlord and Tenant wish to extend the term of the Lease and make
other modifications to the Lease as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the mutual receipt and legal sufficiency of which are
hereby acknowledged, Landlord and Tenant agree as follows:
1. The effective date of this amendment is July 1, 1991 (the "Effective
Date").
2. On and after the Effective Date, Section 1.02 of the Lease shall be
modified by replacing the words "the fifteenth anniversary of the rent
commencement date (as hereinafter defined)" in the third and fourth lines with
the words "June 30, 2004 (the "Expiration Date")".
3. On and after the Effective Date, Section 1.04 of the Original Lease and
Section 2.B of the First Modification shall be modified so that the fixed rent
payable by Tenant shall be One Million One Hundred Seventy-Seven Thousand, Seven
Hundred Seventy-Eight and 52/100 Dollars ($1,177,778.52) per annum.
4. On and after the Effective Date, Section 24.02 of the Lease shall be
modified by replacing the number "$39,650,00" in the twelfth line with the
number "$72,188.28".
<PAGE>
5. On and after the Effective Date, Section 26.01 (b) of the Leased shall
be modified by replacing the year "1979" in the second line with the year
"1991".
6. On and after the Effective Date, Section 26.01 (f) of the Lease shall be
modified by replacing the words "June 30, 1979" in the second line with the
words "June 30, 1991".
7. On and after the Effective Date, Section 26.01 (h) of the Lease shall be
modified by replacing the words "December 31, 1979" in the second line with the
words "December 31, 1991".
8. On and after July 1, 1994 through and including the Expiration Date, the
"Hourly Wage Rate" as defined in Section 26.01 (g) of the Lease shall exclude
all benefits of every nature and kind (including those required to be paid by
the employer directly to the taxing authorities or others on account of the
employment) as further described in the eighth through fifteenth lines on page
45 of the Original Lease.
9. On and after the Effective Date, sections 29.02 and 29.03 shall be
deleted.
10. Tenant represents that it has not dealt with any person other than
Newmark Real Estate Service, Inc. in connection with this Agreement and agrees
to indemnify and hold the Landlord harmless from and against all claims of and
liabilities to any broker(s) or other persons other than Newmark Real Estate
Service, Inc. regarding brokerage or other commissions alleged to be due as a
result of this Agreement.
11. Section 11.01 of the Lease shall be modified so that all notices shall
be sent to the parties at the addresses set forth at beginning of this
Agreement.
12. Except as modified and amended by this Agreement, (a) all of the terms,
covenants and conditions of the Lease are hereby ratified and confirmed and
shall continue to be and remain in full force and effect and (b) all terms and
conditions of the Lease are incorporated herein by reference. All references in
the Lease to "this lease" or "the Lease" shall be deemed to be, unless the
context requires otherwise, references to the Lease as supplemented by this
Agreement.
13. Tenant and Landlord represent and warrant to each other that they are
authorized to enter into this Agreement.
14. Landlord and Tenant shall execute any additional documents that are
reasonably necessary to further the intent of this Agreement.
<PAGE>
15. This Agreement may not be changed, modified, terminated or discharged
orally.
LANDLORD :
----------
MRI BROADWAY RENTAL, INC.
By: PARAMOUNT GROUP, INC., agent
By: /s/
-------------------------------------
NAME:
TITLE: Vice President Property
Management Office Buildings
TENANT:
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TELEPHONE MARKETING PROGRAMS INC.
By: /s/ Andrew J. McKelvey
-------------------------------------
Name:
Title: PRESIDENT